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Consejo de Desarrollo Economico de Mexicali, A.C. v. United States

THOMAS, Circuit Judge. This case involves a dispute over a Bureau of Reclamation project to build a concrete-lined canal to replace an unlined portion of the All-American Canal. The district court denied declaratory and in-junctive relief. A motions panel of our Court granted a temporary injunction halting work on the project pending appeal. After the initial oral argument and based on intervening legislation, the United States filed a motion to vacate the injunction and to remand the action to the district court with instructions that several of the claims be dismissed as moot. We held a second oral argument to consider the motion. After consideration of the extensive briefing and arguments of the parties, we conclude that the environmental and other statutory claims are moot and that the district court lacked subject matter jurisdiction over the remaining claims. We vacate the injunction of the project pending appeal and remand the case to the district court with instructions to dismiss it. I Colorado Poet Laureate Thomas H. Fer-ril described the West by saying: “Here is the land where life is written in water.” The legacy of the West is one of continual, and often bitter, controversies about water rights, both above and below the surface. In the West, “whiskey is for drinking; water is for fighting over,” Mark Twain is said to have observed. Our water dispute brings us to the Mexican-California border and the plans of the United States Bureau of Reclamation to prevent the All-American Canal from seeping water — seepage upon which thousands of Mexicans rely. The All-American Canal is one of the world’s largest irrigation canals, carrying water from the Colorado River to the Imperial Valley in California. The Imperial Valley lies between the Mexican boundary and the Saltón Sea, bounded on the east by sandhills and on the west by the foothills of the San Diego Mountains. The canal is the valley’s only source of water. The All-American canal replaced the Alamo canal, which diverted water a short distance north of the Mexican border, but transported water mostly through Mexico before it re-crossed the border into the Imperial Valley. In the 1920’s, considerable sentiment arose to have a canal that was entirely contained within the boundaries of the United States — perhaps in furtherance of the notion of character Noah Cross (slightly paraphrased), that “either you bring the water to California, or you bring California to the water.” In any event, the concept of an “all-American” canal was born. The All-American Canal System was authorized under the Boulder Canyon Project Act of December 21, 1928, 45 Stat. 1057, codified at 43 U.S.C. § 617. Construction of the canal by the United States Bureau of Reclamation commenced in 1934 following the construction of the Hoover Dam, with the project reaching completion in 1942. The design was aimed to have the water transported entirely within the United States. The new canal, as designed, flowed only in the United States. However, water often refuses to be confined by our artificial restraints. Thus, although the canal’s surface water remained in the United States, its seepage did not — recharging the Mexicali Aquifer and providing a reservoir of groundwater to the Mexicali Valley on the other side of the border. The Mexicali Aquifer underlies both the Imperial Valley in California and the Mexicali Valley in Mexico. The complaint alleges that the roughly 1.3 million people who live in the Mexicali Valley depend on the groundwater from the aquifer, which irrigates thousands of acres of farmland. Prior to 1901, the aquifer was recharged by the Colorado and Alamo rivers. Because it was unlined, the construction of the Alamo Canal did not impact the recharge of the aquifer. Congress considered the idea of lining the All-American Canal, but ultimately decided on an earthen and porous design that did allow seven percent of the volume to seep into northern Mexico. Seepage from the All-American Canal first caused widespread flooding in the Mexicali Valley until mechanisms were put in place to harness the water. The residents and businesses of the Mexicali Valley have since expended considerable resources to create an infrastructure of pumping facilities and conveyance equipment that deliver the water for drinking and irrigation. As a result, the complaint alleges that a large metropolitan community has developed in reliance on the water. In 1944, the United States and Mexico entered into a treaty designed to govern the allocation of Colorado River water between the two nations. See Treaty Between the United States of America & Mexico Respecting Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande [“1944 Treaty”], 59 Stat. 1219, T.S. No. 994, Section III, Art. 10 (Nov. 8,1945). The Treaty came in the context of a developing set of domestic authorities designed to regulate the use of Colorado River water known collectively as the “Law of the River.” After the first World War, as Congress began considering further ways to capture and regulate Colorado River water, the states constituting the Upper Basin of the river (Colorado, Utah, New Mexico and Wyoming) grew concerned that states in the Lower Basin (Arizona, Nevada and California) would begin to claim appropriation rights to the water. See Maricopa-Stanfield v. United States, 158 F.3d 428, 430 (9th Cir.1998). The Colorado River Compact of 1922 apportioned 7.5 million acre feet of water annually to the Lower Basin states to forestall any disputes. See Act of August 19, 1921, art. 2, 43 Stat. 171, reprinted in Ariz.Rev.Stat. § 45-1311. The Boulder Canyon Project Act of 1928 (“Canyon Project Act”) then apportioned that 7.5 million acre feet among the Lower Basin states. See Maricopa-Stanfield, 158 F.3d at 430. To deliver the allocations called for in the Act, the Canyon Project Act authorized the construction of the All-American Canal. See 43 U.S.C. § 617. The apportionment between the Lower Basin states has also been the subject of a series of Supreme Court decisions and decrees, culminating in Arizona v. California, 547 U.S. 150,126 S.Ct. 1543, 164 L.Ed.2d 271 (2006) (“Consolidated Decree”). The Treaty requires the United States to deliver 1.5 million acre feet of Colorado River water to Mexico annually at designated diversion points on the international land boundary as specified in the Treaty. The Treaty also commits the United States to delivering an additional 200,000 acre feet in any year in which there is a surplus of Colorado River water in excess of the amount required to satisfy other obligations. The Treaty then states that “Mexico shall acquire no right beyond that provided by this subparagraph by the use of the waters of the Colorado River system, for any purpose whatsoever, in excess of the 1,500,000 acre feet ... annually.” 1944 Treaty at Art. 10. The Treaty commits the United States to constructing the works necessary to deliver these waters to the diversion points. The Treaty considered the All-American Canal to be one of the mechanisms for delivery. The Treaty committed to the International Boundary and Water Commission (“Boundary Commission”) the authority to resolve disputes arising under the Treaty. Id. at Art 2, 24(d). In 1973, the Boundary Commission issued “minute 242” addressing the problem of the salinity of the Colorado River. See Agreement Confirming Minute No. 242 of the International Boundary and Water Commission, U.S. and Mex., 24 U.S.T.1968 (Aug. 30, 1973). The minute acknowledged that there was no existing agreement governing groundwater issues in the border area between the two nations. The agreement also stated that “[w]ith the objective of avoiding future problems, the United States and Mexico shall consult with each other prior to undertaking any new development of either the surface or the groundwater resources, or undertaking substantial modifications of present developments, in its own territory in the border area that might adversely affect the other eountry.” Id. In 1988, Congress passed the San Luis Rey Indian Water Rights Settlement Act (“Settlement Act”) which authorized the Secretary of the Interior (“Secretary”) to select one of three options for recovering the seepage lost through the All-American Canal. Pub.L. No. 100-675, 102 Stat. 4000, § 203. The choices included constructing a parallel lined canal, lining the existing canal, or constructing seepage recovery facilities such as a well-field between the All-American Canal and the border. The Secretary also considered a no action option. The Settlement Act explained that “significant quantities of water currently delivered into the All American Canal and its Coachella Branch are lost by seepage from the canals and that such losses could be reduced or eliminated by lining these canals.” Id. at § 201. The conserved water was to be used to meet the growing needs of California consumers, as well as to settle water rights claims brought by several Native American groups. Id. at § § 106, 204. The Imperial Irrigation District (“HD”), with whom the Secretary contracts to manage the All-American Canal, and the Metropolitan Water District of Southern California (“MWD”) would deliver the additional water to consumers. Id. at § 202. The Secretary then undertook several environmental studies to consider the impact of the All-American Canal lining project (“Lining Project”) and issued a final environmental impact statement (“FEIS”) and record of decision (“ROD”) in 1994. The FEIS was noticed in the Federal Register at that time. 59 Fed.Reg. 18,573 (Apr. 19, 1994). After consideration of all the alternatives, the ROD selected the parallel lined canal option and the Bureau of Reclamation approved the ROD on July 29,1994. Thereafter, the United States engaged in a diplomatic interchange with Mexico and the Mexican section of the Boundary Commission. There is some dispute as to the nature and extent of that exchange. The United States claims that it engaged in an extensive consultation progress; Mexico, as amicus, complains of cursory and insufficient consultation. The Lining Project lay dormant, however, because the Settlement Act required that the project be paid for by entities benefitting from the conserved seepage and not by the United States. Settlement Act at § 203. While the plan was dormant, the Bureau of Reclamation conducted a reexamination of the FEIS in 1999, but determined that no new significant information changed the initial analysis and thus a supplemental environmental impact statement (“SEIS”) was not required. By 2002, the State of California was using over five million acre feet of Colorado River water per year, 600,000 acre feet above its 4.4 million acre feet allotment under the terms of the Canyon Project Act and Consolidated Decree. Awareness of the size of this usage led to an intensive effort by the region’s water users to assist California in reducing its historical overuse of Colorado River water. This effort led to a series of agreements in 2003 between the United States, the MWD, Coachella Valley Water District, IID, San Diego County Water Authority (“SDCWA”), the La Jolla, Pala, Pauma, Rincon & San Pasqual Bands of Mission Indians, the San Luis Rey River Indian Authority, and the City of Escondido & Vista Irrigation District (the “Allocation Agreement”). The Allocation Agreement provided how the conserved seepage water would be allocated. One aspect of the agreement was that the State of California would pay for the Lining Project. With the project back on track, the Bureau of Reclamation asked the United States Fish and Wildlife Service (“FWS”) to confirm as a biological opinion a conference opinion the FWS had issued on February 8, 1996, regarding the Lining Project’s impact on the Peirson’s Milk Vetch, a threatened plant species. FWS so confirmed the opinion on September 9, 2004. On July 19, 2005, this action was filed in the District of Nevada seeking to enjoin the Lining Project. The Plaintiffs consisted of Consejo de Desarrollo Económico de Mexicali, A.C. (“Consejo”), a Mexican community group, and two American non-profit environmental groups (“Environmental Plaintiffs”) (Citizens United for Resources and the Environment [“CURE”] and Desert Citizens Against Pollution [“Desert Citizen”]). The City of Calexico, California, (“Calexico”) later intervened as a plaintiff as to one count of the complaint. The parties stipulated to, and the district court approved, the intervention of multiple entities on the side of the defense, including the Imperial Irrigation District, the San Diego County Water Authority, the Central Arizona Water Conservation District, the State of Nevada, the Southern Nevada Water Authority, and the Colorado River Commission of Nevada. The court also has been aided at various points in the proceedings by other interested parties and amici. After the district court dismissed a number of counts in the original complaint, the Plaintiffs filed an amended eight-count complaint on February 23, 2006, seeking declaratory and injunctive relief. The first four counts were brought by Consejo, on behalf of a class of beneficial users of the Mexicali Aquifer and the All-American Canal on the Mexican side of the border. Count One alleged an “unconstitutional deprivation of property without due process of law in violation of the class’ substantive and procedural rights.” Count Two alleged a constitutional tort pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), based on the “usurpation of water rights owned by the well owners and water users in the Mexicali Valley” by the Secretary and the Commissioner of the Bureau of Reclamation. Count Three alleged that the “application of water rights priorities in the present context is subject to the doctrines of equitable apportionment or equitable use,” and that “[t]he Secretary and Commissioner have an affirmative duty to configure and implement the All-American Canal Project in a manner that results in the reasonable utilization of the water resources of the Mexicali Valley.” Count Four alleged that the “Secretary and Commissioner are estopped from operating the All-American Canal” in any manner that would block the seepage that has recharged the Mexicali Aquifer for the preceding 63 years. All of the Plaintiffs joined in Count Five, which alleged a violation of the National Environmental Policy Act (“NEPA”) and the Administrative Procedure Act (“APA”). In this count, the Plaintiffs argued that the Secretary and Commissioner failed to prepare a SEIS despite the existence of significant new circumstances bearing on the proposed project. The Plaintiffs argue that five new circumstances warrant preparation of a SEIS: (1) the discovery of the Andrade Mesa Wetlands in Mexico and its importance as a habitat for the endangered Yuma Clapper Rail after preparation of the FEIS; (2) the anticipated transborder socio-eco-nomic impacts from the water loss, which has been altered and exacerbated since the FEIS by demographic changes and the passage of NAFTA; (3) new reports suggesting possible unexplored impacts on the Saltón Sea; (4) alterations in the project plan with regard to human safety mechanisms designed to prevent drowning; and (5) changes in the air quality condition of the effected region. The district court later granted Plaintiff in Intervention status to Calexico as to this count. The final three counts were brought by the Environmental Plaintiffs. Count Six alleged violations of the Endangered Species Act. Specifically, the amended complaint alleged that Bureau of Reclamation failed to reinitiate consultations with the FWS as required despite new information about wetlands habitat and the species therein — namely, the Yuma Clapper Rail and the Peirson’s Milk Vetch — which came to light after the FEIS and biological opinions in existence had been issued. Count Seven alleged an unlawful taking of a listed migratory bird in violation of the Migratory Bird Treaty Act. Count Eight alleged violations of environmental requirements that were made a part of the Settlement Act. The amended complaint also alleged that no amount of damages would be sufficient and thus equitable relief was necessary. Subsequent to the filing of the complaint in this case, on November 18, 2005, the Bureau of Reclamation issued a biological analysis for the Lining Project regarding the Potential Species Impact in the Republic of Mexico and transmitted it to the FWS. The FWS informed the Bureau of Reclamation by memorandum dated January 11, 2006, that, in its opinion, consultation with FWS was not required by the ESA when the impacts being considered take place in foreign territory. One day later, on January 12, 2006, the Bureau of Reclamation issued a Supplemental Information Report (“SIR”) which determined that no substantial changes, significant new information, or circumstances existed that would require the Bureau of Reclamation to issue a SEIS. The Plaintiffs moved for summary judgment as to Count Five (NEPA violations) and CURE moved for summary judgment as to Count Six (Endangered Species Act violations). The Defendants opposed those motions and cross-moved for summary judgment on those claims. The Defendants also moved to dismiss counts 1-4 and 6-8 of the amended complaint for lack of standing, and contended in addition that claims five, seven and eight were time barred. On June 23, 2006, the district court granted the motion to dismiss Consejo with respect to Counts 1-4 and 6-8, but denied the motion to dismiss CURE with respect to Counts 6-8. The order also held that Counts Seven and Eight were time-barred and that Count Five was time-barred with respect to any challenge to the 1994 FEIS, but not with respect to any challenge to the Bureau of Reclamation’s failure to produce a SEIS. On July 3, 2006, the district court denied The Plaintiffs’ motion for summary judgment as to Count five and CURE’S motion for summary judgment as to Count Six and granted The Defendants’ cross-motions on both those counts. Judgment was entered on July 3, 2006. The Plaintiffs filed timely appeals from the judgment. The Plaintiffs then filed a motion in the district court for an injunction pending appeal, which was denied. The Plaintiffs filed a motion for an injunction pending appeal with this Court, which was granted by a motions panel of the Court. After we heard oral argument on the merits of the appeal in December 2006, Congress enacted and the President signed into law the Tax Relief and Health Care Act of 2006, Pub. Law No. 109-432, 120 Stat. 2922 (“2006 Act”). Contained within the 274-page omnibus tax bill were sections directly affecting the Lining Project. In pertinent part, the 2006 Act provided that: (a) ... Notwithstanding any other provision of law, upon the date of enactment of this Act, the Secretary shall, without delay, carry out the All American Canal Lining Project identified — (1) as the preferred alternative in the record of decision for that project, dated July 29, 1994; and (2) in the allocation agreement allocating water from the All American Canal Lining Project, entered into as of October 10, 2003. (b) ... (1) ... Subject to Paragraph (2), if a State conducts a review or study of the implications of the All American Canal Lining Project as carried out under subsection (a), upon request from the Governor of the State, the Commissioner of Reclamation shall cooperate with the State, to the extent practicable, in carrying out the review or study. (2) Restriction of Delay. — A review or study conducted by a State under paragraph (1) shall not delay the carrying out by the Secretary of the All American Canal Lining Project. Id. at § 395. Section 397 of the 2006 Act provides that: The Treaty between the United States of America and Mexico relating to the utilization of waters of the Colorado and Tijuana Rivers and of the Rio Grande, and supplementary protocol signed November 14, 1944, signed at Washington February 3, 1944 (59 Stat. 1219) is the exclusive authority for identifying, considering, analyzing, or addressing impacts occurring outside the boundary of the United States of works constructed, acquired, or used within the territorial limits of the United States. Id. at § 397. Following the effective date of the 2006 Act, the United States filed a motion to remand this case to the district court with instructions that Counts Five through Eight of the amended complaint be dismissed as moot and for an order vacating the injunction pending appeal imposed by the motions panel. The Plaintiffs vigorously opposed the motion, and we heard argument on the motion. II If legislation passing constitutional muster is enacted while a case is pending on appeal that makes it impossible for the court to grant any effectual relief, the appeal must be dismissed as moot. Paulson v. City of San Diego, 475 F.3d 1047, 1048 (9th Cir.2006). Here, the government contends that enactment of the 2006 Act renders the statutory environmental claims contained in Counts 5-8 of the amended complaint moot. In those counts, the Environmental Plaintiffs allege that the Lining Project cannot proceed until the government complies with NEPA, the Endangered Species Act, the Migratory Bird Treaty Act, and the Settlement Act. A In examining the impact of the 2006 Act on this case, we employ our usual methodology in statutory construction. As always, our starting point is the plain language of the statute. Children’s Hosp. & Health Ctr. v. Belshe, 188 F.3d 1090, 1096 (9th Cir.1999). “[W]e examine not only the specific provision at issue, but also the structure of the statute as a whole, including its object and policy.” Id. If the plain meaning of the statute is unambiguous, that meaning is controlling and we need not examine legislative history as an aid to interpretation unless “the legislative history clearly indicates that Congress meant something other than what it said.” Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 877 (9th Cir.2001) (en banc). If the statutory language is ambiguous, we consult legislative history. United States v. Daas, 198 F.3d 1167, 1174 (9th Cir.1999). The government underscores the provisions of the 2006 Act that direct the Bureau of Reclamation to proceed with the Lining Project “without delay” and “notwithstanding any other provision of law.” 2006 Act, § 395(a). The government contends that the import of this language is to exempt the Lining Project from compliance with any other federal law. Assuming it uses constitutional means, Congress may exempt specific projects from the requirements of environmental laws. See Sierra Club v. USFS, 93 F.3d 610, 613-14 (9th Cir.1996); Mt. Graham Coalition v. Thomas, 89 F.3d 554, 556-58 (9th Cir.1996); Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1457-61 (9th Cir.1992); Stop H-3 Ass’n v. Dole, 870 F.2d 1419, 1432 (9th Cir.1989) (noting that Congress may “moot a pending controversy by enacting new legislation”). Our first task in examining the statute is to determine whether Congress intended that result. The fact that the 2006 Act used the phrase “notwithstanding any other provision of law” is not dispositive. United States v. Novak, 476 F.3d 1041, 1046-47 (9th Cir.2007) (en banc). Indeed, “[w]e have repeatedly held that the phrase ‘notwithstanding any other provision of law' is not always construed literally.” Or. Natural Res. Council v. Thomas, 92 F.3d 792, 796 (9th Cir.1996). Rather, when the phrase is used, we have determined its reach by “taking into account the whole of the statutory context in which it appears.” Novak, 476 F.3d at 1046. In viewing the statutory context, we attempt “to give effect, if possible, to every clause and word of a statute, rather than to emasculate an entire section,” Estate of Reynolds v. Martin, 985 F.2d 470, 473 (9th Cir.1993), mindful that “[t]he cardinal principle of statutory construction is to save and not to destroy,” id. Placing the “notwithstanding” language of the 2006 Act in context, we are guided by the further statutory language that the Lining Project proceed “without delay” “upon the enactment of this Act.” 2006 Act § 395(a). If Congress had intended for the Lining Project to proceed under the usual course of administrative proceedings, it would have been unnecessary for Congress to act at all. The environmental challenges would have been resolved in due course. However, proceeding along the usual course of resolving environmental disputes would be inconsistent with the Bureau of Reclamation proceeding “without delay” “upon the enactment of this Act.” The Environmental Plaintiffs allege in their complaint that the Lining Project violates various federal environmental statutes and cannot proceed until the government complies with those strictures. Thus, application of the cited statutes cannot be reconciled with the language of the 2006 Act. Under those circumstances, when Congress has directed immediate implementation “notwithstanding any other provision of law,” we have construed the legislation to exempt the affected project from the reach of environmental statutes which would delay implementation. Mt. Graham Red Squirrel, 954 F.2d at 1456. That is not to say the agency may act lawlessly in completing the project. See Or. Natural Res. Council, 92 F.3d at 797 (rejecting the idea that the phrase “notwithstanding any other provision of law” “require[d] the agency to disregard all otherwise applicable laws,” other than the environmental statutes at issue). Rather, we have applied a common sense construction of the phrase to refer to those laws that would delay the commencement of a project in derogation of express Congressional directive to proceed immediately or, in this case, “without delay.” Applying these principles to the case at hand, we must conclude as a matter of statutory construction that the 2006 Act renders the challenges to commencement of the Lining Project based on NEPA, the Endangered Species Act, the Migratory Bird Treaty Act, and the Settlement Act (contained in Counts Five through Eight of the amended complaint) moot. Each of those claims, if relief were to be granted, would delay commencement of the Lining Project. Congress has instructed otherwise, “notwithstanding any other provision of law.” Therefore, we must construe the 2006 Act as exempting the Lining Project from the identified statutory claims. If valid, the 2006 Act thus exempts the Bureau of Reclamation from the challenges contained in Counts 5-8 of the amended complaint. B Having determined the 2006 Act’s statutory reach, we turn to the Plaintiffs’ other objections to the application of the 2006 Act to the instant case. The Plaintiffs contend that the 2006 Act (1) violates the Tenth Amendment, (2) invades the judiciary’s Article III powers, (3) violates the Equal Protection Clause, and (4) deprives them of protected constitutional interests without due process of law. None of these arguments is persuasive. 1 The Plaintiffs argue that the 2006 Act violates the Tenth Amendment because it requires the Bureau of Reclamation to commandeer California’s resources to carry out the project given that the Settlement Act directs that “[n]o federal funds are authorized to be appropriated to the Secretary for construction of [the canal].” Pub.L. No. 100-675, § 203(e)(1), 102 Stat. 4000 (Nov. 17,1988). As with all claims, we must satisfy ourselves that we have jurisdiction. We must determine independently that the Article III requirement of a live case or controversy has been met, even if the issue has not been raised by the parties. See American Civil Liberties Union of Nev. v. Lomax, 471 F.3d 1010, 1015 (9th Cir.2006). If a “live” controversy does not exist, the case is moot. Id. (citing City of Erie v. Pap’s AM., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000)). Here, the Plaintiffs argue that if the 2006 Act goes into effect, it will require the commandeering of California’s financial resources. However, California has already agreed to appropriate its financial resources to the Lining Project. See The Allocation Agreement. Therefore, the controversy the Plaintiffs seek to litigate by this challenge — whether the United States may appropriate California’s resources — no longer exists. Accordingly, we hold that this claim is moot and we therefore lack jurisdiction to reach its merits. 2 The Plaintiffs also contend that the 2006 Act violates the principle of separation of powers by dictating a specific result in a pending judicial case. Congress may change the substantive law governing a pending case so long as it does not “direct any particular findings of fact or application of law, old or new, to fact.” Robertson, 503 U.S. at 438, 112 S.Ct. 1407. However, “[t]he constitutional principle of separation of powers is violated where (1) Congress has impermissibly directed certain findings in pending litigation, without changing any underlying law, or (2) a challenged statute is independently unconstitutional on other grounds.” Ecology Ctr. v. Castaneda, 426 F.3d 1144, 1148 (9th Cir.2005) (internal quotation marks and citations omitted). This type of controversy and claim is not new. We have considered similar challenges in the context of planned government action, and concluded that similar legislation did not violate the principle of separation of powers. Ecology Ctr., 426 F.3d at 1148-49; Mt. Graham Red Squirrel, 954 F.2d at 1457-58; Stop H-3 Ass’n, 870 F.2d at 1431. As in the legislation underpinning our prior decisions, the 2006 Act does not direct us to make any findings or to make any particular application of law to facts. Rather, the legislation changes the substantive law governing pre-conditions to commencement of the Lining Project. As such, it does not violate the constitutional separation of powers. 3 The Plaintiffs next claim that the 2006 Act violates the Equal Protection Clause by selectively denying Latinos their fundamental life and property interests in a healthy environment because the effected Imperial Valley region has a large Latino population. They argue that strict scrutiny applies to the legislation since it discriminates against Latinos as a suspect class and that the Act cannot survive strict scrutiny review. We need not reach the merits of this claim because, on the record before us, Desert Citizen does not have standing to bring it. “An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth v. Laidlaw Envt’l Serv. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)). Here, Desert Citizen fails the first of these three elements. It has not demonstrated that any of its members would have standing to bring this claim in their own right. Desert Citizen’s argument, that it is being discriminated against on the basis of a suspect class' — namely, Latinos — requires that its members are also members of that class. Nothing in the record indicates that they are. We further note that nothing in the record indicates that representing the interests of Latinos is germane to Desert Citizen’s organizational purpose. Accordingly, Desert Citizens does not have organizational standing to bring this claim. 4 Desert Citizen also challenges the 2006 Act as violating its procedural due process rights by depriving its members of life and property interests in a healthy environment without due process of law. This challenge is based on the asserted failure of Congress to comply with its own procedural rules in adopting §§ 395 and 397 of the 2006 Act. We need not decide here whether the right to a healthy environment is of constitutional magnitude. Cf. Stop H-3, 870 F.2d at 1430 & n. 21. Even assuming, arguendo, that it is, the procedural decision of Congress, discharging its function as a lawmaking body, not to hold a hearing on general legislation is a question not subject to judicial review. “It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution.” Lewis v. Casey, 518 U.S. 343, 349, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). “A controversy is nonjusticiable — i.e., involves a political question-where there is a ‘textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.’ ” Nixon v. United States, 506 U.S. 224, 228, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (quoting Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663(1962)). However, “the courts must, in the first instance, interpret the text in question and determine whether and to what extent the issue is textually committed.” Here, Article I of the Constitution provides that “[ejach House may determine the Rules of its Proceedings.” U.S. Const., art. I, § 5. In short, the Constitution textually commits the question of legislative procedural rules to Congress. Thus, whether Congress decides to hold a hearing on legislation applicable to the general public is a non-justiciable political question beyond our power to review. 5 Given that the 2006 Act passes constitutional muster on the claims raised by the Plaintiffs, we must give it full effect as we have construed it. Therefore, we conclude that, in light of the 2006 Act, we cannot fashion effective relief and the challenges raised in Counts 5-8 based on alleged past violations of NEPA, the Endangered Species Act, the Migratory Bird Treaty Act, and the Settlement Act are moot. Ill The remaining claims asserted by Con-sejo in Counts 1-4 based on various property rights and common law theories are not affected by the 2006 Act. However, for various reasons, the district court lacked subject matter jurisdiction over those claims. A The district court lacked subject matter jurisdiction over Consejo’s first claim, that its members were deprived of property without due process of law. Assuming, without deciding, that Consejo’s members had a cognizable property interest, its remedy for an alleged takings claim is under the Tucker Act, 28 U.S.C. § 1491. A takings claim is premature until the plaintiffs have exhausted their rights under the Tucker Act. Preseault v. ICC, 494 U.S. 1, 17, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990). This restriction is jurisdictional. “The simple fact is that we have no jurisdiction to address the merits of takings claims where Congress has provided a means for paying compensation for any taking that might have occurred.” Bay View, Inc. on behalf of AK Native Village Corps. v. Ahtna, Inc. 105 F.3d 1281, 1285 (9th Cir.1997). Consejo appears to be claiming that the Lining Project may be enjoined because it infringes on its members’ property rights. However, as we noted in Bay View, “the government is not prohibited from taking private property; indeed the eminent domain clause contemplates that the government will take private property as needed for public purposes, so long as it pays compensation.” Id. at 1284. In short, jurisdiction over Consejo’s takings claim lies in the Court of Federal Claims, not the District of Nevada. B The district court also lacked subject matter jurisdiction over Consejo’s Bivens claims. In Count Two of the amended complaint, Consejo seeks to enjoin various individual government officials, based on Bivens, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619. Bivens created a remedy for violations of constitutional rights committed by federal officials acting in their individual capacities. In a paradigmatic Bivens action, a plaintiff seeks to impose personal liability upon a federal official based on alleged constitutional infringements he or she committed against the plaintiff. See, e.g., Balser v. Department of Justice, Office of U.S. Trustee, 327 F.3d 903, 909 (9th Cir.2003). “[A] Bivens action can be maintained against a defendant in his or her individual capacity only, and not in his or her official capacity.” Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.1987). This is because a Bivens suit against a defendant in his or her official capacity would merely be another way of pleading an action against the United States, which would be barred by the doctrine of sovereign immunity. Nurse v. United States, 226 F.3d 996, 1004 (9th Cir.2000). Therefore, the Supreme Court has refused to extend Bivens remedies from individuals to agencies. FDIC v. Meyer, 510 U.S. 471, 484, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Here, Consejo has sued various Federal officials in their official capacities. It seeks to enjoin official action. Consejo does not claim damages based on the past unconstitutional acts of Federal officials in their individual capacities. Therefore, the district court lacked subject matter jurisdiction over the claim because the United States has not consented to its officials being sued in their official capacities. C Consejo’s third and fourth claims (apportionment and estoppel) seek equitable remedies based on common law property rights. However, because the United States has not consented to be sued, the district court lacked subject matter jurisdiction over the claims. The United States, as a sovereign, is immune from suit unless it has waived its immunity. Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255, 260, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999); United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). A court lacks subject matter jurisdiction over a claim against the United States if it has not consented to be sued on that claim. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988). “When the United States consents to be sued, the terms of its waiver of sovereign immunity define the extent of the court’s jurisdiction.” United States v. Mottaz, 476 U.S. 834, 841, 106 S.Ct. 2224, 90 L.Ed.2d 841 (1986) (citing United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). A waiver of sovereign immunity by the United States must be expressed unequivocally. United States v. Nordic Village, Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). As a general matter, purported statutory waivers of sovereign immunity are not to be liberally construed. Id. at 34, 112 S.Ct. 1011. The only waiver of the sovereign immunity of the United States cited by Consejo is the Administrative Procedure Act. Section 702 of the APA states that [a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.... The United States may be named as a defendant in any such action ... Provided, That any mandatory or injunc-tive decree shall specify the Federal officer or officers ... personally responsible for compliance. 5 U.S.C. § 702 (emphasis added). However, as we have noted, “[d]espite the breadth of this language, the statute does not confer jurisdiction independent of some other specific statute.” Office of Governor, Territory of Guam v. Dep’t of Health and Human Servs., Admin. on Dev. Disability, 997 F.2d 1290, 1292 (9th Cir.1993). In Califano v. Sanders, 430 U.S. 99, 107 n. 6, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), the Supreme Court noted that the § 702 language must be read in conjunction with § 703, which suggested that the APA remedies under § 702 “look[ed] to outside sources of jurisdictional authority.” By itself, § 702 does not impose any substantive duties on agencies or government officials. It is a procedural statute that requires another relevant statute to form the legal basis for the complaint that the government has acted unlawfully. See Wright, Miller & Cooper, 14A Federal Practice and Procedure § 3659 (3d ed.2006). Here, Consejo’s counts three and four rely not on relevant statutes that the Bureau of Reclamation is alleged to have violated, but rather on Consejo’s members’ common law water rights. In count three, Consejo alleges that “[t]he Secretary and Commissioner have an affirmative duty to configure and implement the All-American Canal Project in a manner that results in the reasonable utilization of the water resources of the Mexicali Valley,” but it does not state from where that duty derives. In count four, Consejo only alleges that “[t]he Secretary and Commissioner are es-topped from operating the All-American Canal Project differently” than before. Absent any relevant statute on which to judge the legality of the agency’s actions, § 702 is inapplicable and cannot be invoked as a waiver of sovereign immunity. Therefore, Consejo’s equitable claims of apportionment and estoppel are barred by sovereign immunity. Because the United States has not consented to be sued, the district court lacked subject matter jurisdiction over the claims. IV In sum, the 2006 Act renders the claims based on past violations of NEPA, the Endangered Species Act, the Migratory Bird Treaty Act, and the Settlement Act moot. The district court lacked jurisdiction over Consejo’s takings claim, which must be asserted before the Court of Federal Claims. Consejo’s remaining claims are barred by sovereign immunity. We remand this case to the district court with instructions to dismiss Counts 5-8 as moot and to dismiss Counts 1-4 for lack of subject matter jurisdiction. We vacate the injunction pending appeal previously entered by the motions panel. Given our decision, we need not and do not reach any other questions raised by the parties or relied upon by the district court. All pending motions are denied as moot. VACATED and REMANDED with instructions. . Chinatown (Paramount 1974). . The Plaintiffs make two additional claims that we do not address. First, the Plaintiffs contend that if the currently-planned project proceeds it will violate the 2006 Act itself, because the Act calls for implementation of the preferred alternative as determined by the 1994 ROD, but the plan has changed since then — namely, the 1994 plan called for human safety ridges on the canal to prevent drowning while the 2006 plan calls for ladders. Because the complaint never alleged violations of the 2006 Act — indeed, it could not have — that claim is not properly before us. Likewise, Desert Citizen claims that the 2006 Act still requires compliance with the air quality commitments made in the 1994 FEIS and ROD. We agree and the government does not dispute this point. Desert Citizen has not alleged that Reclamation is not in compliance with those commitments. To the extent Desert Citizen’s claim is that the project is or will be in violation of the 2006 Act if it does not so comply, that claim is similarly not before us. . Although the Bureau of Reclamation, being a Federal agency, is not subject to the strictures of the Equal Protection Clause, "In Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), the Supreme Court indicated that the Fifth Amendment’s Due Process Clause, subjects the federal government to constitutional limitations that are the equivalent of those imposed on the states by the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause commands that no state shall deny any person the equal protection of the laws. U.S. CONST. amend. XIV, § 1.” Stop H-3 Assn, 870 F.2d at 1429 n. 18. We therefore read Desert Citizen’s challenge as a Fifth Amendment claim. . This contention is based on the claim that minority communities are often exposed to greater environmental hazards than non-minority communities. See Kessler v. Grand Cent. Dist. Management Ass’n, Inc., 158 F.3d 92, 130 (2d Cir.1998) (citing Michele L. Knorr, Environmental Injustice, 6 U. Balt. J. Envtl. L. 71, 77-84 (1997) (summarizing evidence of discrimination against minority and low-income communities with respect to pollution and hazardous waste disposal); Edward P. Boyle, Note, It’s Not Easy Bein’ Green: The Psychology of Racism, Environmental Discrimination, and the Argument for Modernizing Equal Protection Analysis, 46 Vand. L.Rev. 937, 968 (1993) ("A substantial amount of evidence shows that environmental discrimination is a national phenomenon.”); Rachel D. Godsil, Note, Remedying Environmental Racism, 90 Mich. L.Rev. 394, 397 (1991) ("A host of studies have concluded that minorities are exposed to a higher level of pollution of all forms than are whites.”); Marianne Lavelle & Marcia Coyle, Unequal Protection: The Racial Divide in Environmental Law, Nat'l. L.L, Sept. 21, 1992, at S2 (concluding from results of study that "federal government, in its cleanup of hazardous sites and its pursuit of polluters, favors white communities over minority communities under environmental laws meant to provide equal protection for all citizens”)). . We consider this claim brought exclusively by Plaintiff Desert Citizens as Plaintiff Conse-jo has failed to sufficiently argue this claim in its brief. . Because it is an interlocutory order pending appeal, see Fed. R.App. P. 8(a), our order vacating the injunction pending appeal shall become effective immediately upon the filing of this opinion, regardless of when the mandate issues.

Safeco Insurance Co. of America v. City of White House

OPINION BOGGS, Circuit Judge. Safeco Insurance Company of America and Eatherly Construction Company appeal from two final orders of the district court. Appellants believe that the district court made several errors in the case, which involves an alleged breach of contract by Eatherly. Also, the contract incorporated EPA regulations that Appellants believe violated the Constitution by imposing improper race-based preferences. A jury found that Appellants did not prove that Eatherly did not breach the contract; the district court ruled that the regulations, as it found them to exist, did not violate the Constitution. The City of White House cross-appeals from the district court’s order awarding White House damages for the breach but denying it prejudgment interest. We vacate the judgments below and remand for further proceedings. I. Background to the Appeal A. Bid and Execution of Contract In January 1987, the City of White House, Tennessee (‘White House”) advertised for bids on Contract III, Job No. 78-16 (“the Project”), for the construction of a sanitary sewer system for White House. On March 12, 1987, White House opened the bids. Eatherly Construction Company, a Tennessee partnership, submitted the low bid, priced at $2,643,749.10. Moore Construction Company submitted the second-lowest bid, at $2,998,029.56, see Safeco Ins. Co. v. City of White House, Tennessee, 36 F.3d 540, 543 (6th Cir.1994) (“Safeco I”)—$345,280.46 higher than Eatherly’s bid. White House chose Ea-therly, the low bidder. On March 12, 1987, Safeco Insurance Company of America, a Washington corporation, executed a “Bid Bond.” In return for a payment of five percent of the amount bid by Ea-therly, Safeco pledged to act as surety for any agreement between Eatherly and White House. The EPA had already offered a grant to White House to help pay for the Project. To receive the grant, White House had to ensure compliance with several EPA requirements. Thus, White House selected the low bidder “subject to concurrence by the U.S. Environmental Protection Agency.” Further, the contract documents incorporated EPA’s standard and supplemental requirements (titled “Contractors on Federally Assisted Wastewater Facilities Construction Requirements”). One EPA mandate provided that, “A contractor must comply with the following provisions in its award of subagreements .... (d) The requirement for small, minority, women’s and labor surplus area business in [40 C.F.R.] § 33.240.” Another contract document stated that: It is the policy of the Environmental Protection Agency (EPA) to require its grantees to award a fair share of suba-greements to small and minority and women’s businesses on contracts ans [sic] subagreements performed under EPA construction grants. This requirement is contained in 40 Code of Federal Regulations Part 33 Section 240. The contract also provided that, if Ea-therly chose to subcontract part of the project, it must submit to the EPA — and to White House, within 10 days after the bid opening — “evidence of the positive steps taken to utilize small, minority, and women’s businesses.” On April 9, 1987, Eatherly executed the contract and returned it to White House, which executed the contract on April 16, 1987. On that day, Safeco agreed to act as surety on a “Payment Bond” (guaranteeing that Eatherly would pay its subcontractors and pay for materials and labor) and a “Performance Bond” (guaranteeing White House that Eatherly would perform). The contract provided that, within 90 days of execution, White House would issue a Notice to Proceed. Thus, White House had until July 15, 1987, to issue the Notice. To verify compliance with the contract terms (including the EPA requirement), the contract required Eatherly to document its compliance, and it permitted White House to reject the bid if Ea-therly did not comply. On June 17, 1987, Eatherly informed White House that Ea-therly was withdrawing its bid pursuant to its belief that the contract allowed withdrawal after 90 days from the date of bid opening. See Safeco I, 36 F.3d at 543. On July 16, 1987, White House awarded the contract to Moore Construction Company, the second lowest bidder, for its original bid plus $20,000 for an increase in the price of materials. See ibid. On July 23, 1987, White House wrote to Safeco to demand payment under the Bid Bond. White House contended that Eatherly failed to comply with the EPA requirements; Eatherly contended that it complied with all requirements and that it did not breach the contract by withdrawing the bid. Faced with these conflicting arguments, Safeco sought a declaratory judgment resolving its liability to White House. B. Initial Proceedings in District Court In November 1987, Safeco filed a complaint in federal court seeking a declaratory judgment regarding the extent of its liability under the Bid Bond. On information and belief, Safeco related Eatherly’s contentions that Eatherly complied with the contract requirements; that White House neither unconditionally accepted the bid nor unconditionally awarded the contract; and that the contract permitted Ea-therly to withdraw the bid. Because Safe-co (a Washington corporation) named White House (Tennessee) and Eatherly (Tennessee) as defendants, it asserted federal jurisdiction based on diversity. In its answer, White House asserted counterclaims and cross-claims against Safeco and Eatherly for damages under the Bid Bond and Performance Bond, and White House cross-claimed against Eatherly for breach of contract. Continuances, motions, a magistrate judge’s report, and orders followed. The district court adopted the magistrate judge’s report that held that Eatherly and White House had a contract, but that material issues of fact remained regarding whether Eatherly breached it by failing to make a good-faith effort to comply with the EPA regulations. In 1990, Chief District Judge Nixon, as he was then, realigned the parties to align Eatherly with Safeco. To preserve diversity, Judge Nixon dismissed without prejudice Eatherly, which he found dispensable. Eatherly reacted by filing an action in state court against Safeco and White House. See Safeco I, 36 F.3d at 544. Safeco asked District Judge Nixon to stay the federal case, but he denied the motion. White House filed a motion for summary judgment claiming that Eatherly committed anticipatory breach by withdrawing its bid after the contract arose. District Judge Nixon granted the motion. He awarded damages of $352,847.08, pre-judgment' interest of $207,358.03, and attorney’s fees and costs. C. Safeco I and its Aftermath Safeco appealed to this court. On October 3, 1994, this court issued its decision in Safeco Insurance Company v. City of White House, Tennessee, 36 F.3d 540 (6th Cir.1994) (“Safeco 7”). We held that the district court had subject matter jurisdiction because it did not err by dismissing Eatherly. See id. at 544-46. Next, we held that a contract bound Eatherly and White House. See id. at 546-47. We reversed the district court’s finding that Eatherly breached the contract. We explained that EPA approval served both as “a promise and condition for Eatherly.” Id. at 548. “Eatherly was under a duty to seek EPA approval, and yet EPA approval was itself a condition of Eatherly’s duty to perform.” Ibid. The opinion concluded by explaining the district court’s error: The issue of breach, then, centers on whether Eatherly exercised good faith in its attempts to comply with the EPA’s requirements. If Eatherly made a good faith effort to comply with the EPA’s regulations, and the EPA nonetheless withheld approval, Eatherly would have satisfied its obligations under the contract, and Eatherly would have no duty to perform further. Exactly what constitutes a good faith effort is a difficult question that involves a factual determination.... The analysis is complicated by the question of whether Eatherly withdrew its bid too early and whether Eatherly should have made further attempts to obtain EPA approval.... Thus, on the issue of breach, there is clearly a genuine issue of material fact concerning Eatherly’s good faith. Ibid. Upon remand, the parties began preparing for trial. On June 12, 1995, the Supreme Court issued its opinion in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995), which applied strict scrutiny to federal racial classifications governing construction projects. On June 30, Safeco moved for summary judgment, arguing that the EPA regulations violated the Constitution in light of Adarand and thus that the “contractual obligation is unenforceable.” On August 8, the district court granted White House’s motion for a pre-trial ruling on damages. The court held that “the principal measure of damages in this case is, as this Court previously held [before Safeco I], the difference between the Ea-therly Construction Company bid and the second low bidder’s contract price.” In September, the district court permitted the EPA, through DOJ, to intervene on the side of White House. In October, the court permitted Eatherly to intervene on the side of Safeco. Eatherly sought relief, claiming that, on their face and as applied, the regulations violated the “Equal Protection component of the Due Process Clause,” and that the court should find the regulations void for vagueness. Cf. Adarand, 515 U.S. at 217-18, 115 S.Ct. 2097 (equating the equal protection obligations imposed by the Fifth Amendment with those of the Fourteenth Amendment). On March 20, 1996, the district court disposed of several motions. The court denied Safeco and Eatherly’s motions for summary judgment. It granted EPA and White House’s motions for partial summary judgment regarding the regulations’ facial validity and lack of vagueness. The court explained that the regulations “do not trigger strict scrutiny analysis because they merely seek to ensure that minority firms are fairly notified of and considered for subcontracting opportunities. The regulations establish no set-asides, numerical goals, penalties, or financial incentives.” The court denied summary judgment for EPA and White House regarding the constitutionality of the regulations, as applied. On December 16, 1996, the court delivered another ruling. Cognizant of the impending jury trial, the court ruled as follows: (1) The court, not the jury, would decide as a matter of law whether Eatherly suffered the unconstitutional application of the EPA regulations. (2) Safeco had the burden of proof regarding excuses for Eatherly’s non-performance on the contract claim. (3) The jury would decide two issues: (a) “Whether Eatherly ... breached the Contract by failing to satisfy its good faith obligation under the Contract to obtain EPA approval by complying with the EPA regulation incorporated in the Contract.” (b) “WThether it would have been futile for Eatherly Construction to have attempted to obtain EPA approval during the 28 day period following its purported ‘withdrawal of its bid’ (until July 15,1987).” (4) The court would not reconsider its order adopting the measure of damages. (5)The parties must accept the holding of Safeco I that a contract existed. Safeco and Eatherly objected to the jury instructions and interrogatories; the court overruled the objection. District Judge Nixon presided over a jury trial that lasted from April 15 to April 18, 1997. The jury found that Safeco did not prove that Ea-therly acted in good faith, or that it would have been futile for Eatherly to attempt to obtain approval during the remaining 28 days. In August 1997, the court issued a memorandum and order. In the order, it adopted the jury findings. The court ruled, as a matter of law, that “the EPA did not require or induce Eatherly to award contracts on the basis of race.” The district court held that, even if the regional EPA Project Officer had a personal belief about the policy, she did not enforce that belief on Eatherly. It found that, as applied, the regulation did not violate the Constitution. In separate memoranda and orders, the district court awarded White House the previously-assessed damages ($352,847.08), but denied its request for pre-judgment interest. The court ruled that, although Tennessee law provided that White House may receive interest as a matter of right, equity dictated that Safeco should not have to pay interest, because it did not alone cause the ten-year delay that resulted in the large interest balance. The judge permitted White House to file an application for costs and attorney’s fees. Safeco and Eatherly appealed from the final judgments. White House cross-appealed from the order denying an award of pre-judgment interest. II. Burden of Proof Regarding Eatherly’s Alleged Breach of Contract Although the issues in this appeal range from the constitutionality of a purported race-based preference to the availability in Tennessee of pre-judgment interest, those issues are subordinate to the question of whether Eatherly breached its contract with White House. In 1987, Safeco precipitated twelve years of litigation by requesting a declaratory judgment regarding its liabilities under bonds relating to the Project. White House responded by seeking damages under the bonds and claiming that Eatherly breached the contract. In Safeco I, we decided that a contract existed and that the finder of fact should decide on remand whether Eatherly breached the contract by failing to take good-faith efforts to comply with contractual provisions regarding EPA approval. See Safeco I, 36 F.3d at 548. Appellants’ constitutional challenges serve merely as an affirmative defense to the asserted breach, and the matters involving damages, costs and attorney’s fees, and pre-judgment interest also have relevance only if Eatherly breached the contract. Therefore, we first review the proceedings that resulted in a judgment that Eatherly breached the contract. Safeco contends that the district court propounded jury interrogatories that unfairly imposed the burden of proof on Safeco and Eatherly rather than on White House. Safeco also believes that the district court erred by refusing to instruct the jury on Safeco’s proposed defense that Eatherly had a good-faith belief that it could withdraw its bid. Tennessee law governs the burden of proof in diversity actions. See, e.g., In re Bendectin Litigation, 857 F.2d 290, 312 (6th Cir.1988), cert. denied sub nom. Hoffman v. Merrell Dow Pharm., Inc., 488 U.S. 1006, 109 S.Ct. 788, 102 L.Ed.2d 779 (1989). This court reviews de novo a district court’s jury instructions. See, e.g., Jones v. Federated Fin. Reserve Corp., 144 F.3d 961, 966 (6th Cir.1998). This court reviews for abuse of discretion a district court’s use of jury interrogatories. See United States v. H.M. Branson Distrib. Co., 398 F.2d 929, 936 (6th Cir.1968); cf. Armstrong v. Dwyer, 155 F.3d 211, 214 (3d Cir.1998) (reviewing for abuse of discretion a court’s formulation of jury interrogatories); First Nat'l Bank v. Lustig, 96 F.3d 1554, 1576 (5th Cir.1996) (same). A. The Jury Interrogatories The district court submitted two questions to the jury: 1. Do you find that Safeco Insurance Company has proved that Eatherly Construction Company complied with its obligation under the contract to obtain EPA approval by complying with the regulation incorporated in the contract which required Eatherly Construction Company to make a good faith effort to solicit MBE, SBE, and WBE [Minority, Small, and Women’s Business Enterprise] participation and to document its efforts to do so? Then your answer, yes or no. 2. Do you find that Safeco Insurance Company has proved that it would have been futile or impossible for Eatherly Construction acting with reasonable diligence to have obtained EPA approval during the remaining 28-day period following its announcement that it was withdrawing its bid? Answer, yes or no. Safeco objected to the interrogatories and requested a general verdict; the judge overruled the objection. Safeco believes that White House should have borne the burden of proving that Eatherly failed to comply with the contractual obligation. Safeco also contends that the second interrogatory imposed an unprecedented burden. In 1987, Safeco initiated the proceedings by filing for a declaratory judgment. In its complaint, Safeco did not ask for a declaration of its lack of liability— rather, it asked for a determination of its liability under the Performance Bond. White House counter-claimed against Safe-co and Eatherly, asserting their liability under the Performance and Bid Bonds, and it cross-claimed against Eatherly for breach of contract. Although Safeco brought its complaint under the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, Tennessee law governs the burden of proof for the non-federal matters. Cf. American Eagle Ins. Co. v. Thompson, 85 F.3d 327, 331 n. 3 (8th Cir.1996) (drawing this proposition from a Third Circuit case). Under Tennessee law, the burden of proof in a declaratory judgment action mirrors that of “ordinary actions at law or suits in equity.” Blake v. Plus Mark, Inc., 952 S.W.2d 413, 417 (Tenn.1997) (quoting 2 WalteR H. Anderson, Actions for Declaratory Judgments § 375 (2d ed.1951)). The interrogatories forced Safe-co to prove that Eatherly did not breach the contract. As this court commanded in Safeco I, the remand involved the question of whether Eatherly breached by failing to perform: “Eatherly was under a duty to seek EPA approval, and yet EPA approval was itself a condition to Eatherly’s duty to perform.” Safeco I, 36 F.3d at 548. We observed that Tennessee contract law requires parties to make good-faith efforts to fulfill their contractual obligations, whatever the nature of the obligations. Thus, we explained, “[t]he issue of breach, then, centers on whether Eatherly exercised good faith in its attempts to comply with the EPA’s requirements.... [O]n the issue of breach, there is clearly a genuine issue of material fact concerning Eatherly’s good faith.” Ibid. Under Tennessee law, a party seeking to recover on a contract has the burden of showing that the other party breached the contract. See Life Care Ctrs. of America, Inc. v. Charles Town Assocs. Ltd. Partnership, 79 F.3d 496, 513-14 (6th Cir.1996); cf. Stash, Inc. v. Palmgard Int’l, Inc., 937 F.Supp. 531, 534 n. 8 (D.Md.1996) (discussing declaratory judgment actions) (“It is a fundamental rule that the burden of proof in its primary sense rests upon the party who, as determined by the pleadings, asserts the affirmative of an issue and it remains there until the termination of the action.”) (quotation omitted). White House correctly observes that Tennessee law requires parties to prove affirmative defenses, and White House claims that the interrogatories address Safeco’s affirmative defenses of impossibility of performance and nonperformance of a condition precedent. White House fails to realize that if the answers to the interrogatories resolved nothing but those two purported affirmative defenses, the jury never decided whether Eatherly breached the contract, which was the sole issue impelling the remand. Also, White House cites inapposite cases. In Tennessee contract actions, if a plaintiff claims that a defendant breached a contract, the defendant may assert the affirmative defense that the plaintiff failed to comply with a condition precedent to the defendant’s duty to perform; if the defendant asserts this defense, he bears the burden of proof. Here, however, Eatherly had an unconditional duty to seek EPA approval. Ea-therly’s compliance served as a condition precedent for White House, and if EPA denied approval in the face of a good-faith effort by Eatherly, then EPA’s denial excused Eatherly’s duty to perform. Cf. Safeco I, 36 F.3d at 548 (interpreting the contract). In the proceedings below, White House asserted that Eatherly did not adequately seek EPA approval — by this assertion, White House thus claimed that Eatherly breached. Had the jury ruled that Eatherly made a good-faith effort to perform its contractual duty, Eatherly could then assert an affirmative defense — i.e., that EPA’s intransigence excused Eatherly’s nonperformance. Thus, the district court erred by placing the burden of proof on Safeco, and both interrogatories suffer from this flaw. Safeco further objects to the second interrogatory because it required Safeco to prove the futility of Eatherly’s obtaining EPA approval during the 28 days between Eatherly’s withdrawal and the deadline for White House to issue the Notice to Proceed. The second interrogatory serves only to elicit circumstantial evidence of Eatherly’s good faith (e.g., if Eatherly could have obtained approval during the 28 days, perhaps it had not tried very hard before it withdrew its bid). We recognize that Safeco I mentioned that, “Of course, good faith does not require the doing of a futile act; but the issue of whether further efforts at compliance were futile needs to be decided by a trier of fact.” Safeco I, 36 F.3d at 548. The first interrogatory subsumes the second, however, as the first asks whether Eatherly acted in good faith. The court erred by propounding the second interrogatory, as it imposed the burden of proof on the wrong party. At best the second interrogatory was superfluous; at worst it misled the jury regarding the standard of “good faith.” On remand, White House might point to the 28-day period of inaction as evidence of a lack of good faith, see Part II.B infra, but, as a matter of law and logic, Safeco and Ea-therly cannot prove that it would have been “impossible” for them to obtain approval during that time—one cannot prove with certainty that the EPA would not have approved the project during those days. B. Safeco’s Proposed Jury Instruction The district court rejected Safeco’s proposed amendment to the jury instructions. Apparently, Safeco sought to preface the second interrogatory with an instruction or interrogatory (the record is unclear) that, “If you find that Eatherly Construction Company did not in good faith believe that they could withdraw, then they would have to prove it was possible to go forward.” Safeco intended this as a good-faith affirmative defense unrelated to the contractual obligation to make a “good-faith” effort to comply with the EPA regulations. Safeco wanted an instruction that, if the jury found that Eatherly believed, in good faith, that it had the right to withdraw its bid 90 days after the bid opening, the jury should ignore the 28 days between the bid withdrawal and the deadline for White House to issue a Notice to Proceed. If the jury so found, it would ignore the second interrogatory about “futility.” The court did not add the instruction. If Eatherly had a reasonable, good-faith belief that the contract permitted it to withdraw its bid after 90 days, the court should have instructed the jury as a matter of law to disregard Eatherly’s actions after it withdrew the bid. “A good faith disagreement over the meaning of an ambiguous contractual provision does not constitute a breach of contract.” Boiler Supply Co., Inc. v. Lunn Real Estate Investments, Inc., No. 01A01-9605-CH-00246, 1998 WL 684599, at *4 (Tenn.Ct. App. July 1, 1998) (unpublished). If Eatherly had a reasonable belief that it could withdraw and terminate the contract, it did not have a duty to continue to attempt to comply with another contractual provision (i.e., the EPA regulations). Ea-therly’s belief about withdrawal does not excuse Eatherly’s duty before withdrawal to obtain EPA approval, however, so Ea-therly’s belief about withdrawal affects only the second interrogatory, and not the first. This issue did not receive adequate attention below. First, Safeco appears to have objected on the wrong grounds. At a bench conference, Safeco’s attorney admitted that, “I know it’s [the proposed instruction] not a defense, but it’s part of the story.”' Second, the court did not explain its decision. Third, the parties did not refer to evidence about Eatherly’s belief and the contract’s language although, admittedly, the setting did not appear to lend itself to such a presentation. Finally, Safeco should have asked the court to rule, as a matter of law, that a good-faith disagreement existed regarding the contract. Because our decision vacates the prior judgment, Appellants will have the chance to correct this error and properly request the instruction. Appellants will bear the burden of proving Eatherly’s reasonable, good-faith belief that the contract permitted Eatherly to withdraw its bid after 90 days. The court should instruct the jury that, if Appellants convince the jury that Eatherly had a good-faith belief that it could withdraw its bid after 90 days, the jury should disregard the 28-day period between the withdrawal of the bid and the deadline for White House to issue the Notice to Proceed. If some contractual provisions created in Eatherly a good-faith belief that Eatherly could withdraw its bid (without breaching the contract) after a certain date then, after that date, Eatherly did not have a duty to make a good-faith effort to comply with other, unrelated provisions. III. Matters Involving the EPA and its Minority Subcontractor Hiring Requirements The previous section explored some issues implicated by White House’s claim that Eatherly breached the contract. If Eatherly did not make a good-faith effort to comply with the terms of the contract (ie., to obtain EPA approval), it breached the contract. The EPA’s involvement, however, introduces additional complexity. As discussed at pages 684-87 infra, the nature of the contract’s incorporated EPA requirements remains unclear; after more than a decade of litigation, the parties cannot agree what actions the EPA required of Eatherly. Also, the parties dispute whether the judge or jury should have decided what standard the EPA used to assess Eatherly’s compliance. Further, the Supreme Court’s decision in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995), raises the possibility that the EPA requirements facially, or as applied to Ea-therly by an EPA Project Officer, imposed an impermissible racial classification. Safeco has raised this as an affirmative defense to the claim of breach, arguing that, even if the finder of fact decided that Eatherly did not make a good-faith effort to comply with the EPA requirements, the court should hold the requirements unconstitutional and decline to enforce them. Cf. Shelley v. Kraemer, 334 U.S. 1, 19-20, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). Because the EPA regulations, as applied to Eatherly, bear little resemblance to their text in the Federal Register, we begin by reciting the facts, to show the complexity faced by the district court throughout the course of this litigation. A. Eatherly’s Attempts to Comply with the EPA Requirements As discussed at pages 677-78 supra, the contract between Eatherly and White House incorporated an EPA regulation. Between March 12 and June 17, 1987, Eatherly took some steps to comply with the EPA requirements regarding subcontracting with small, minority, and women’s businesses (hereinafter called “MBE” to accord with the parties’ practice, as they dispute only Eatherly’s compliance with the minority business provisions). 1) Background of the EPA MBE Regulation In 1983, EPA promulgated its final rules for “Procurement Under Assistance Agreements,” which were published in 40 C.F.R. Part 33. See Procurement Under Assistance Agreements, 48 Fed.Reg. 12,-922 (1983). Subpart B governed “Procurement Requirements.” Section 33.240 provided as follows: 33.240 Small, minority, women’s, and labor surplus area businesses. (a) It is EPA policy to award a fair share of subagreements to small, minority, and women’s businesses. The recipient must take affirmative steps to assure that small, minority, and women’s businesses are used when possible as sources of supplies, construction and services. Affirmative steps shall include the following: (a)(1) Including qualified small, minority, and women’s businesses on solicitation lists; (a)(2) Assuring that small, minority, and women’s businesses are solicited whenever they are potential sources; (a)(3) Dividing total requirements, when economically feasible, into small tasks or quantities to permit maximum participation of small, minority, and women’s businesses; (a)(4) Establishing delivery schedules, where the requirements of the work permit, which will encourage participation by small, minority, and women’s businesses; (a)(5) Using the services and assistance of the Small Business Administration and the Office of Minority Business Enterprise of the U.S. Department of Commerce, as appropriate; and (a)(6) If the contractor awards suba-greements, requiring the contractor to take the affirmative steps in paragraphs (a)(1) through (a)(5) of this section. (b) [Reserved]. (c) EPA encourages recipients to procure supplies and services from labor surplus area firms. 48 Fed.Reg. at 12,929. The Eatherly-White House contract contained a slightly-modified version of these regulations. Until 1983, EPA regions established “goals for MBE or WBE participation.” 48 Fed.Reg. at 12,923. EPA stated that it used the goals “as a tool to determine whether the affirmative steps [of 40 C.F.R. § 33.240] were adequately carried out....” Ibid. The 1983 ruling altered procedures to permit EPA recipients (here, White House), to “use their own goals, State goals, or other standards.” Ibid In 1986, EPA issued a “Guidance” for its “fair share policy” in wastewater treatment construction grants. The Guidance anticipated that each State would establish a “fair share objective” and allocate the goal to particular construction projects. If a State had not established a goal for a specific grant project, the EPA recipient 0e.g., White House), “should establish an objective which it considers reasonable and achievable based on a number of factors such as the availability of minority and women-owned businesses in the geographic area where the project is being built.” Nothing in the Joint Appendix shows that Tennessee or Wfiiite House ever established fair share objectives for the state or for specific projects; in fact, the evidence suggests that Wfiiite House took no steps to evaluate a fair share objective. Nancy Barron, who served from 1986-1988 as EPA MBE Project Officer for the State of Tennessee, declared that, “There was no fair share goal negotiated on this project [the Project], and no numerical goal that either Wfiiite House or the prime contractor was expected to meet.” 2) The MBE Regulation as Applied to Eatherly Barron, the MBE Project Officer, declared that, when no fair share objective numerical goal existed, she made a subjective evaluation of a contractor’s efforts to comply with EPA policy. “In situations like this, I evaluated a prime contractor’s effort at compliance with the EPA’s policies and regulations by whether it made a good-faith effort to solicit WBE/MBE participation, not on whether any particular level of WBE/MBE participation was achieved.” In contrast, Appellants contend that Barron conditioned project approval on the hiring of at least one MBE. Robert Eatherly owns and manages Ea-therly Construction Company. James Stacey, an Eatherly employee, had the responsibility of guaranteeing compliance with the MBE regulations. No local MBE candidates had the qualifications necessary to perform the subcontracting work on a pumping station; Eatherly chose Collier Construction, a non-MBE firm. Eatherly also chose to subcontract out work on pavement replacement, road boring, and gravity sewer lines. From Ed Walker, White House’s engineer, Stacey obtained a list of MBEs that might perform the paving and secondary service line work. Apparently, the Tennessee Department of Economic and Community Development had compiled the list (the “master list”). From the master list, Stacey selected all MBEs located within driving distance of the Project and with the qualifications necessary to perform the subcontracted work. Those limits reduced the names to ten firms. Via certified mail, on March 30, 1987, Stacey invited the ten firms to bid on the subcontracting work. On April 1, Stacey had a telephone conversation with Barron. Barron informed Stacey that Ea-therly had failed to comply with the EPA regulations within the ten-day period required by the contract. Because Barron found Stacey cooperative, Barron did not inform White House of this error. Stacey told Barron about the mailing, and Barron asked for a written list of the ten firms. Barron also suggested that, to obtain more names, Stacey contact Cecil Conley of the Tennessee Office of Minority Business Enterprise. On April 6, Stacey mailed Barron a handwritten copy of the ten names. Although the original list contained ZIP codes, as did the certified mail receipts, Stacey did not copy the ZIP codes onto the handwritten list. In his letter, Stacey told Barron that he would inform her of the responses from the MBEs. Stacey received no responses to his mailings. Further, the post office returned three letters to Eatherly. Stacey telephoned one MBE from the list, Robert Crutchfield, who turned down the job because he had too much other work. Stacey telephoned another MBE from the list, HMC Contractors. Because of other work, HMC would not commit to the job, but told Stacey it would reconsider after Eatherly started work on the Project. On April 27, Barron called Stacey to obtain a status report. Again, she told him to call Conley to obtain another list of MBEs. She also asked Stacey to document all the steps he had taken, all responses to his letters, whether he made follow-up phone calls, and whether any firms expressed interest. Later, in a deposition, Barron admitted that she did not inform Stacey of her belief that the absence of ZIP codes rendered inadequate the handwritten list. Stacey told her that Collier, the non-MBE pumping subcontractor, agreed to subcontract $20,000 of work to an MBE. On June 8, White House sent Eatherly a letter expressing unease with Eatherly’s failure to obtain EPA approval for the MBE requirements; White House asked Safeco to give the matter its “closest attention.” Safeco I, 36 F.3d at 543. On June 10, Stacey, Barron, and White House’s attorney, David Amonette, participated in a conference call. Stacey claims that he told Barron that HMC might give Eatherly a commitment, and that Barron asked for a signed agreement between HMC and Ea-therly. Amonette claims that Stacey said that Eatherly intended to use HMC. Barron claims that Stacey said he had a tentative commitment, but no price. Barron says that she told Stacey that, if he confirmed the commitment in writing, she would approve the Eatherly contract, and she asked him to send the confirmation by Federal Express. That day, Amonette mailed a letter to Stacey to confirm Ea-therly’s intentions to use HMC, and to express his “understanding from our phone conversation with Mrs. Barron ... that upon receipt of your letter she would confirm that your company has the authority to proceed.” Stacey did not send the letter. He explained that, because he could not reach an agreement with HMC regarding price, he did not want to commit in writing to subcontract with HMC. Barron confirms that Stacey told her this on June 15. He did not call or write Amonette. On June 17, Robert Eatherly met with Amonette, the Mayor, and some others. Eatherly asked what else he could do to obtain EPA approval, but White House representatives did not offer any advice. Believing that construction industry custom and the contract permitted him to withdraw starting 90 days after he submitted his bid, Eatherly withdrew the bid. He testified that he withdrew the bid to permit Eatherly to commit to other contracts that it had a better chance of obtaining; that no one challenged his right to withdraw; and that the Mayor responded, “I don’t blame you for withdrawing.” Of course, Eatherly took no further action to comply with the EPA regulations. July 15, 1987, the 90-day deadline for Eatherly to comply with the EPA regulations, came and went. Following Barron’s directive after Eatherly withdrew its bid, White House had awarded the contract to Moore Construction Company, the second-lowest bidder. Claiming that Eatherly committed an anticipatory breach, White House demanded that Safeco comply with its promise on the Bid Bond. Safeco filed the declaratory judgment action. B. Legal Matters Implicated by the EPA Requirements The contract incorporated EPA requirements that affect the litigation in two separate ways. First, the breach of contract claim requires elucidation of the requirements: as we held in Safeco /, under Tennessee law, Eatherly had a good-faith duty to comply with its contractual obligations, which included obtaining EPA approval. Second, in response to the breach of contract claim, Appellants have asserted the affirmative defense that the EPA requirements imposed an unconstitutional race-based preference. Obviously, as the first step in resolving these two matters, one must know precisely what the EPA required of Eatherly. 1) Identifying the Appropriate Finder of Fact Before trial, the district court had concluded that “genuine issues of material fact exist with respect to whether EPA’s regulations were constitutionally applied .... ” It thus refused to grant summary judgment on this issue for EPA and White House. In another pre-trial ruling, it decided to withhold the question from the jury, ruling that, “The legal determination as to whether specified conduct violates the Constitution is not within the province of the jury.” After trial, the district court made “findings of fact” (consisting only of a narrative of the evidence offered at trial), and delivered its “conclusions of law,” including the following: “[Although Nancy Barron .,. may have held a personal opinion on one aspect of promoting inclusiveness that went beyond official EPA policy, she did not act upon that opinion and require or induce Ea-therly to award contracts on the basis of minority status.” We believe that the jury, and not the judge, should have decided the factual question about the nature of the standard of compliance required by Barron. (Safe-co injected unnecessary confusion by casting this complaint as a request that the jury decide whether Barron unconstitutionally applied the regulation.) The district court called the issue one of “material fact,” but decided the issue itself because it implicated constitutional issues. It seems that the jury should have decided whether Barron imposed a standard of good-faith-effort-to-solicit (as opposed to a standard of good-faith-effort-to-hire, or even one of compulsory hiring), and the district court then could have ruled whether Barron’s practice constituted an unconstitutional racial classification. Cf. Curtis v. Oklahoma City Public Schools Bd. of Educ., 147 F.3d 1200, 1211 n. 13 (10th Cir.1998) (discussing role of jury in First Amendment cases involving government employers). In the somewhat-related field of qualified immunity, even in circuits where judges rule on the reasonableness of state actors, juries still decide issues of material fact. See, e.g., Sharrar v. Felsing, 128 F.3d 810, 828 (3rd Cir.1997). 2) The District Court’s Description of the EPA Requirements After choosing to interpret the standard applied by Barron, the district court phrased its finding in the negative, writing that Barron did not “require or induce Eatherly to award contracts on the basis of minority status.” This comment does not answer the question of what standard Barron in fact imposed; this omission makes it difficult to review the district court’s conclusion that Barron did not unconstitutionally apply the regulation. Even after a searching review of Barron’s depositions and declarations, we have difficulty ascertaining what standard she applied (and, relatedly, conveyed to Eatherly) in deciding whether Eatherly’s actions satisfied her. In fact, the record contains evidence that suggests that Barron in fact required more than a sincere attempt to solicit MBE subcontractors. Ambiguities in the testimony and exhibits permit the conclusion that she conditioned approval on documentation of Eatherly’s commitment to hire, not of Eatherly’s attempt to solicit, an MBE subcontractor. Further, her testimony appears inconsistent about both the degree of documentation she wanted from Eatherly, and the extent to which she disclosed these requirements to Eatherly. 3) Conflating the Breach of Contract Issue with the Racial Preference Issue On remand, the district court should correct the aforementioned errors and should ensure that the constitutional analysis remains distinct from the breach of contract analysis. The breach of contract analysis involves Eatherly and its duty to make good-faith efforts to comply with the EPA requirements. Eatherly had a duty to comply only with those requirements made known to Eatherly, however. Thus, for purposes of deciding whether Eatherly made a good-faith effort to gain EPA approval, the district court should limit the investigation of the “EPA requirements” to the text of the contract, the regulations incorporated by the contract, and the requirements communicated to Eatherly by representatives of the EPA and White House. Eatherly had no duty to satisfy the subjective, unexpressed views of Nancy Barron. We mention this because the record reveals that the trial exposed the jury to statements by Barron that expressed her interpretation of the EPA regulations. To the extent she did not convey it to Eatherly, Barron’s subjective interpretation of the regulations has relevance only for resolving whether she applied the regulation unconstitutionally — a matter distinct from the question of whether Ea-therly made a good-faith effort to comply with the terms of the contract. 4) Constitutionality of the EPA Regulation Because we hold that the district court erred by itself deciding how Barron applied the regulation and by phrasing its finding only in the negative, we cannot review its judgment about the constitutionality of the regulations. To provide guidance on remand, we discuss the matter insofar as the record permits. a) Standing Although no party mentions whether Appellants have standing to challenge the constitutionality of the statute, this court must assure itself of jurisdiction. If we assume for the sake of argument that the regulations impose a racial preference and force contractors to hire MBEs, Appellants must still demonstrate that they suffered an injury. See Bras v. California Pub. Utils. Comm’n, 59 F.3d 869, 872 (9th Cir.1995), cert. denied, 516 U.S. 1084, 116 S.Ct. 800, 133 L.Ed.2d 748 (1996). Unlike the affirmative action plans often struck down by courts, the EPA regulations do not (apparently) exempt MBE contractors from the requirements of compliance. All contractors face the same burden in finding subcontractors, so white contractors do not suffer a competitive disadvantage (this assumes, of course, that one cannot subcontract to oneself). Compare, as a representative example, Concrete Works of Colorado, Inc. v. City and County of Denver, 36 F.3d 1513, 1518-19 (10th Cir.1994), cert. denied, 514 U.S. 1004, 115 S.Ct. 1315, 131 L.Ed.2d 196 (1995), which found that a bidder had standing because “minority and women-owned prime contractors may use their own work to satisfy MBE and WBE participation goals.” Id. at 1518; see also Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 706 (9th Cir.1997) (finding standing where the challenged law exempted MBEs from goal and “good-faith” requirements). Appellants have standing. The alleged failure to comply with the regulations did not result in the loss of a bid to an advantaged competitor, but did result in the loss of a contract and the institution of a suit. Further, even if the assumed-unconstitutional regulations do not place one contractor at a competitive disadvantage with other contractors, the regulations place white subcontractors at a disadvantage. “A person required by the government to discriminate by ethnicity or sex against others has standing to challenge the validity of the requirement, even though the government does not discriminate against him.” Monterey Mechanical, 125 F.3d at 707; see also Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 350-51 (D.C.Cir.1998) (echoing this proposition, casting it as a matter of third-party standing), reh’g denied, 154 F.3d 487 (D.C.Cir.1998); cf. Lutheran Church, 141 F.3d at 349-50 (finding injury-in-fact where compliance with governmental racial hiring preferences caused “economic harm by increasing the expense” of running the business). Satisfied that Safeco and Eatherly may challenge the regulations, we turn to the requirements imposed by White House and EPA. b) The EPA Requirements White House and EPA repeatedly emphasize that the requirements do not impose a numerical quota, but that they instead ask only for a “good-faith effort,” and thus cannot impose a racial classification. We do not believe that this assertion, standing alone, insulates the EPA requirements from scrutiny. First, the contract incorporates (and reprints some of) the EPA regulation. The regulation’s text nowhere contains the phrase “good-faith effort.” Rather, the regulation declares that, “It is EPA policy to award a fair share of subagreements to small, minority, and women’s businesses.” 40 C.F.R. § 33.240(a) (emphasis added). “Fair share” implies that the outcome must meet an implicit goal — a goal derivable from one’s calculation of “fair share,” but almost certainly non-zero. Cf. Bras, 59 F.3d at 875 (“While the Code and Order do not expressly state that public utilities must adopt any particular programs such as bidding preferences or set-asides, they clearly have the practical effect of requiring them to do so.”); Miami Tele-Communications, Inc. v. City of Miami, 743 F.Supp. 1573, 1580 n. 8 (S.D.Fla.1990) (finding an implicit racial preference in a minority intern-hiring set-aside linked to “the racial and ethnic composition of the city”). From the beginning, the regulation anticipated that grant recipients (here, White House) would “use their own goals, State goals, or other standards” 48 Fed. Reg. at 12923 (emphasis added). The relevant EPA Guidance directed each recipient to implement the “fair share objective” by establishing an “objective which it considers reasonable and achievable based on a number of factors such as the availability of minority and women-owned businesses in the geographic area where the project is being built.” Used thus, “objective” means an objective, not subjective, standard by which to measure compliance. Second, the text commands that recipients “take affirmative steps to assure that small, minority, and women’s businesses are used when possible.... ” 40 C.F.R. § 33.240(a) (emphases added). To this end, the regulation lists several “affirmative steps,” but the steps exist to fulfill the goal of using — not merely soliciting or conducting outreach towards — MBEs. Cf. J.A. 1092 (reprinting “Attachment No. 9” to the contract) (“[T]he [successful] bidder must submit to the EPA ... evidence of the positive steps taken to utilize small, minority, and women’s businesses.”). Thus, the regulation anticipates the formulation of numerical objectives (through recipients’ “fair share objectives”), or at least the creation of subcontracting “goals.” The government cannot omit the word “quota” and thereby insulate its regulations from scrutiny. See Lutheran Churchr-Missouri Synod v. FCC, 154 F.3d 487, 491-92 (D.C.Cir.1998) (rejecting argument that “a regulation constitutes a racial classification only if it requires or obliges someone to exercise a racial preference”) (“Although an analysis of the degree of government pressure to grant a racial preference would no doubt be significant in evaluating whether a regulation survives strict scrutiny, it is the fact of this encouragement — a fact that no one denies — that makes this regulation [an affirmative action hiring program] a racial classification.”); Monterey Mechanical, 125 F.3d at 710-11; Bras, 59 F.3d at 874 (“The Code and Order are not immunized from scrutiny because they purport to establish ‘goals’ rather than ‘quotas.’ We look to the economic realities of the program rather than the label attached to it.”). But see Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 60 (2d Cir.1992) (construing “fair share” language as requiring only good-faith solicitation efforts and not requiring “particular set-asides,” and thus not objectionable unless implementing regulations impose unconstitutional conditions.) The parties discuss “good-faith efforts” regarding MBE subcontractors because, even though that phrase does not seem to appear in the official EPA documents (at least those referenced by, or reprinted in, the contract), Nancy Barron claimed to apply that standard to Eatherly. Barron admitted that neither Tennessee nor White House (the EPA recipient) established a “fair share goal” for the project. She claimed that, “In situations like this, I evaluated a prime contractor’s effort at compliance with the EPA’s policies and regulations by whether it made a good-faith effort to solicit WBE/MBE participation, not on whether any particular level of WBE/MBE participation was achieved.” This court cannot find provisions in the contract or regulation that anticipated that, in the absence of a “fair share goal,” an EPA official would resolve matters on a case-by-case basis. Safeco contends that, rather than apply a standard of “good-faith attempt to solicit,” EPA actually required the hiring of MBE subcontractors. Such a requirement would appear to impose a race-based preference, requiring strict scrutiny. Government actions might still incur strict scrutiny if they forced contractors to make a good-faith effort to “solicit” MBE subcontractors, but did not “require or induce” the contractors to hire MBEs. If not for the district court’s factual finding — which the jury will re-visit on remand — that Barron did not require Eatherly to hire MBEs, this case might fall on all fours with Lutheran Church. There, the D.C. Circuit wrote that affirmative action hiring incentives that “indisputably pressure— even if they do not explicitly direct or require — [radio] stations to make race-based hiring decisions” require strict scrutiny. Lutheran Church, 154 F.3d at 491. That opinion expressly did not reach the question “[w]hether the government can encourage — or even require — an outreach program [which the court contrasted with ‘actual hiring’] specifically targeted on minorities.” Id. at 492. Perhaps the reasoning underlying Lutheran Church, Monte-rey Mechanical and Bras dictates that the government imposes a racial classification when it compels all contractors to solicit minority subcontractors. After all, such a policy would impose compliance costs on contractors and will harm white subcontractors if it imposes a racial preference. Lutheran Church’s standard appears to justify the application of strict scrutiny whenever the government “encourage[s]” racial preferences, Lutheran Church, 154 F.3d at 492, and the “good faith” requirement certainly has the effect of increasing hiring of MBEs. We do not resolve the above issues, but present them as a guide for the district court. Although explicit racial preferences must withstand strict scrutiny, the government may not avoid searching review merely by invoking the phrase “good-faith effort to solicit.” Such a phrase masks factual contingencies with a large potential impact. EPA’s definition of “good faith” may impose an onerous burden. For example, EPA could conceivably require a contractor to act in “good faith” by mailing bid invitations to every minority subcontractor in the continental United States and by submitting notarized reports, in triplicate, that list the responses, analyze the bids in exhaustive detail, and painstakingly justify the reasons for selecting non-MBE subcontractors. Documentation requirements and the geographic scope of solicitation — both of which are implicated in the instant appeal — represent elements that the court should consider before evaluating whether the requirements “indisputably pressure[d],” Lutheran Church, 154 F.3d at 491, Eatherly to hire MBEs. Also, although White House and EPA appear to contend that “solicitation” merely compels “outreach,” the record suggests that EPA interpreted the regulation in accordance with its plain meaning, requiring an outcome resulting in the hiring of an MBE subcontractor. See, e.g., note 9 supra. The government commands more than “solicitation” when it mandates that, in the case of “competitive” bids between MBE and non-MBE subcontractors (and “competitive” seems far more vague than “identical”), it expects the contractor to “utilize” the MBE subcontractor. See Barron Decl. at ¶ 12. Outreach efforts may or may not require strict scrutiny. See, e.g., Allen v. Alabama State Bd. of Educ., 164 F.3d 1347, 1352 (11th Cir.1999) (ruling that “strict scrutiny is generally inapplicable” to outreach efforts that target one race). But, where “outreach” requirements operate as a sub rosa racial preference — that is, where their administration “indisputably pressures” contractors to hire minority subcontractors— courts must apply strict scrutiny. See Lutheran Church, 154 F.3d at 491; Sussman v. Tanoue, 39 F.Supp.2d 13, 26 (D.D.C.1999) (distinguishing benign from suspect “outreach” programs, emphasizing that the latter “lead[ ] to racial preferences in hiring decisions”; also, considering whether the administering agency has enforcement or disciplinary authority over the party making the hiring decision). Once a court establishes that the government imposes a racial classification, the court must apply strict scrutiny regardless of the strength of the perceived adverse impact of the classification. See, e.g., Walker v. City of Mesquite, Tex., 169 F.3d 973, 981 (5th Cir.1999). IV. Proceedings After Remand A. Damages The question of damages arose at a hearing held before the appeal of Safeco I. During the hearing, White House offered to present evidence of its damages, and Safeco objected, claiming, “We didn’t realize that this was an aspect of the proceeding before this Court today and are not prepared to go forward with it.” The judge asked if Safeco intended later to offer proof, and Safeco responded ambiguously, “The difference between the two bids — the difference is what it is. I mean, there is really no dispute as to the difference .... ” One may interpret this as does White House, as conceding the issue of damages, or one may see it as does Safeco, as declining a futile challenge to White House’s arithmetic calculation of its claimed measure of damages. After this exchange, White House called the Mayor, who testified only about the difference in the two bids. On May 14, 1993, the district court granted White House’s motion for summary judgment. The court wrote, “Upon review of the evidence presented at the oral argument and the record in this case, the Court finds that White House is entitled to a judgment against Safeco in the principle [sic] amount of $352,847.08 [and pre-judgment interest and costs and attorney’s fees].” Safeco appealed. This court upheld the district court’s ruling that a contract existed, but we vacated the judgment and remanded for proceedings regarding whether Eatherly breached. See Safeco I, 36 F.3d at 548. The district court scheduled a trial, and Safeco filed a “Pre-Trial Conference Argument,” in which it challenged the calculation of damages. The court granted White House’s competing motion and ruled that “the principal measure of damages in this case is, as this Court previously held in its Order entered May 17,1993, the difference between the Eatherly ... bid and the second low bidder’s contract price.” The court did not submit the damages question to the jury; after the trial, in the final judgment, it explained that, “in keeping with the law of the ease, this Court enters judgment for that principal amount of damages against Safeco Insurance Company.” It appears that the “law of the ease” does not bar appellate review of the award of damages in the court below. This court did not reach the issue of damages in Safeco I, but it vacated the “judgment and award of attorney fees,” Safeco I, 36 F.3d at 548, and affirmed only “the district court’s conclusion that a contract existed.” Ibid. Further, the law of the case did not bar reconsideration by the district court of the damages. Cf. Kavorkian v. CSX Transp., Inc., 117 F.3d 953, 959 (6th Cir.1997) (“Our remand for a new trial rendered it unnecessary for us to consider the issue of damages, and the failure of the mandate to discuss the issue of damages meant that the district court was free to submit that issue to the jury.”); Gaines v. Dougherty County Bd. of Educ., 775 F.2d 1565, 1569 (11th Cir.1985) (explaining why law of the case did not bar appellate review of court’s denial of attorney’s fees). This court has set forth the applicable law: Unquestionably, the district court, exercising diversity jurisdiction over a breach of contract claim involving a contract provision whereby the parties concurred that the agreement would be governed by Tennessee law, was required to apply the Volunteer state’s law regarding proof of damages. Under Tennessee law, the purpose of awarding damages in breach of contract actions is to compensate for damages actually incurred by placing the plaintiff in the position he would have occupied had the contract been fulfilled in accordance with its terms, not to provide a windfall for the plaintiff. The plaintiff bears the burden of proving damages, and without adequate proof, there can be no award of damages in any amount. Grantham and Mann, Inc. v. American Safety Prods., Inc., 831 F.2d 596, 601 (6th Cir.1987) (citations omitted). The district court may have provided a windfall for White House, which bears the burden of proving damages. Safeco offered evidence that EPA gave White House an additional grant of $375,811 “due to a bid overrun.” This grant suggests that the damages award gives a windfall to White House. Tennessee does not apply the collateral source rule to contract actions. See Drewry v. Continental Cas. Co., No. 03A01-9111-CH-417, 1992 WL 60876, at **5-6 (Tenn.Ct.App. Mar.30, 1992); cf. United States v. City of Twin Falls, Idaho, 806 F.2d 862, 873-74 (9th Cir.1986) (concluding that Idaho would not apply the collateral source rule to preclude offsets for EPA grants for an Idaho waste treatment project), cert. denied sub norm., City of Twin Falls, Idaho v. Envirotech Corp., 482 U.S. 914, 107 S.Ct. 3185, 96 L.Ed.2d 674 (1987). The district court erred by refusing to consider evidence that White House received a compensatory EPA grant. Safeco’s other claims appear to lack merit. Even if Moore charged White House for increased material costs, the bid price would not reflect those later costs. Because the court based the damages on the bid price, subsequent charges would not affect Safeco. As for Moore’s alleged breach of EPA violations, this conflates the issue of breach with that of damages. Safeco should have pled this as an affirmative defense, but it expressly limited its “equitable” arguments to the calculation of damages. Finally, Safeco must do more than demand that White House have rebid the project after Eatherly withdrew. Had Eatherly never submitted a bid, no evidence suggests that White House would not have chosen Moore as low bidder. The expense and delay of rebidding the Project may have yielded no lower bid; after all, Moore had an incentive to make its lowest feasible bid during the first bidding. On remand, the district court should place the burden on White House to establish that it suffered damages and that an award would do no more than restore it to the position it would have occupied had Eatherly performed. This inquiry will require the parties to discuss, and the court to decide, the effect of the EPA grant and the EPA regulation that White House alleges will requires White House to reimburse EPA if White House triumphs. See note 11 supra. Appellants also appeal the award of costs and attorney’s fees, and White House cross-appeals the denial of pre-judgment interest. Because we remand for a new trial, and because resolution of those issues (if they re-arise) will not require an inquiry similar to the one necessary for assessing damages, we express no opinion on the district court’s rulings awarding costs and attorney’s fees to White House and denying White House pre-judgment interest. B. Further Proceedings On remand, a jury will decide 'whether Eatherly satisfied its obligation to make good-faith efforts to comply with its contractual duties; specifically, the jury will determine whether Eatherly attempted in good faith to obtain EPA approval. To assess Eatheriy’s good faith, the jury should limit its inquiry to the requirements known to Eatherly — namely, the contract provisions, any regulations incorporated in the contract, and the instructions conveyed to Eatherly by representatives of White House and EPA. Because White House asserts that Eatherly breached, White House bears the burden of proof. If Appellants convince the jury that Eatherly had a good-faith belief that the contract permitted withdrawal after ninety days, Eatheriy’s actions after withdrawal would have no relevance for assessing its efforts to comply with the EPA regulations. If Appellants fail to convince the jury of Ea-theriy’s good-faith belief in withdrawal, the jury may use the 28-day period as relevant evidence of Eatheriy’s failure to make a good-faith effort to obtain EPA approval. Regardless of the jury’s decision, White House retains the burden of proof on breach, and Appellants should not have to prove that it would have been “futile” for Eatherly to obtain EPA approval in the 28-day period. Of course, if the jury finds that Eatherly undertook good-faith efforts to satisfy its contractual obligations, Appellants prevail and the constitutional and damages issues become moot. Second, the jury will decide how EPA applied the requirements to Eatherly. This finding of fact will require the jury also to consider Barron’s subjective interpretation of the requirements. This finding of fact will involve at least three components: what EPA intended Eatherly to do to satisfy EPA, how Eatherly had to document its actions, and how EPA would evaluate whether Eatherly complied. Using this finding of fact, the district court will decide whether EPA’s actions in applying the requirements were constitutional. If the jury finds that Eatherly breached, and the court finds that the EPA requirements did not violate the Constitution, the court should hold a hearing to assess damages against Eatherly. At the hearing, Appellants may present evidence of the EPA grant, and White House may argue the import of the EPA regulation that allegedly requires repayment of the grant. We express no opinion as to the district court’s rulings on costs and attorney’s fees, and on pre-judgment interest. C. Conclusion The judgments of the district court are VACATED and the ease is REMANDED for further proceedings consistent with this opinion. . At one point during litigation, White House and Safeco stipulated to different figures, assigning Eatherly a bid of $2,643,289.10 and Moore a bid of $2,989,029.50, for a difference of $345,740.40. The parties do not explain why they chose these figures (the Moore stipulation appears to transpose digits). When White House presented its proof of damages, it gave amounts of $2,643,749.10 and $2,996,-596.18, and calculated a difference of $352,-847.08. The district court eventually awarded White House the sum of $352,847.08. . One judgment forces Safeco, as surety, to pay damages to White House. As Eatherly observed in its motion to intervene, Safeco might bring an indemnification action against Eatherly. Thus, Eatherly has an interest in appealing the award against Safeco. . For example, Harlan v. Hardaway, 796 S.W.2d 953, 957 (Tenn.Ct.App.1990), cited by White House, supports this proposition. Two of the other cited cases, Covington v. Robinson, 723 S.W.2d 643, 646 (Tenn.Ct.App.1986), and Investors Acceptance Co. v. James Talcott, Inc., 61 Tenn.App. 307, 454 S.W.2d 130, 140 (Tenn.Ct.App.1969), stand for a related point that, if a plaintiff sues a defendant for nonperformance, the plaintiff must show that the plaintiff satisfied any implied conditions precedent to the defendant's performance. . In 1996, EPA deleted Part 33. See Grants and Agreements with Institutions of Higher Education, Hospitals, and other Non-Profit Organizations, 61 Fed.Reg. 6,066 (1996). Slightly modified, the requirements once listed in 40 C.F.R. § 33.240 still govern assistance agreements with state and local governments. See 40 C.F.R. § 31.36(e). . Conley testified that he did not remember receiving any telephone calls, messages, or letters from Eatherly or Stacey. . For example, the invitation for bids provided that, "No bidder may withdraw his bid within ninety (90) days after the actual date of opening thereof to allow the Owner to complete its financing arrangements.” One could read this to permit withdrawals after 90 days. . At least, no party asserts that the regulations exempt MBE contractors, and the EPA documents in the Joint Appendix do not exempt MBE contractors. . That failure appears to violate the EPA requirements, which directly govern grant recipients (e.g., White House), and, via incorporation in the contract, indirectly govern contractors. The EPA Guideline required recipients to establish "fair share objectives.” . The difference seems slim; how can one "solicit” in good faith but not violate the regulations by choosing not to hire the MBE? One possible answer: "solicitation” requires only outreach, while hiring requires commitment. Thus, if a contractor had the choice of an MBE and a non-MBE subcontractor with equivalent bids, the contractor may choose the non-MBE subcontractor and still comply with a "solicitation” requirement. Barron appears to have required more, stating that, if Eatherly had received competitive bids from an MBE and a non-MBE subcontractor, Eatherly would have had to use the MBE subcontractor. See Barron Decl., J.A. 1119 at ¶ 12; Barron Testimony, J.A. 925. . Cf. Taxman v. Board of Educ., 91 F.3d 1547, 1549 (3rd Cir.1996) (en banc) (answering in the affirmative the question of "whether the Board of Education of the Township of Piscataway violated [Title VII] when it made race a factor in selecting which of two equally qualified employees to lay off"), cert, dismissed, - U.S. -, 118 S.Ct. 595, 139 L.Ed.2d 431 (1997). . In Safeco’s briefs submitted in its first appeal, Safeco challenged the calculation of damages. ■ . White House cites several contrary cases, each distinguishable and not controlling. White House also claims that an EPA regulation will require it to reimburse EPA. See 40 C.F.R. § 35.945(d). The regulation does not clearly apply, however, and White House should address this argument to the district court. . Also, Appellants argue that Barron acted "ultra vires” in applying her subjective interpretation of the EPA requirements. Presumably, Appellants mean that the trial should not have involved Barron at all: if Eatherly had a good-faith duty to comply with the contractual provisions, and if the contract does not mention Barron's subjective judgment, Barron's subjective judgment has no relevance to a determination of whether Ea-therly made a good-faith effort to comply with the contract. We do not find this argument preserved from the judgments below, and thus do not pass on it today. We note that Appellants may raise the argument in future proceedings, and we believe that the district court may best decide whether the argument has force.

International Paper Co. v. Town of Jay

JOHN R. BROWN, Senior Circuit Judge: The International Paper Company (“IP”), an industry operating in the town of Jay, Maine (“the Town” or “Jay”), brought suit to invalidate and enjoin enforcement of a municipal ordinance (“the Ordinance”) which regulated the emission of pollutants by Jay industries, including IP. IP claimed that the Ordinance placed undue restrictions upon its bargaining power in a labor dispute with striking unions and violated various federal and state laws. In a comprehensive opinion, 736 F.Supp. 359 (D.Me. 1990), the district court granted judgment on the pleadings in the Town’s favor, Fed. R.Civ.P. 12(c), and this appeal follows. Concluding that IP could not have prevailed at trial under any conceivable set of facts asserted by the pleadings, we affirm primarily on the firm footing of the district court’s opinion, as supplemented by this opinion. How It All Began In June 1987, two unions representing 1,200 workers at the Jay, Maine, pulp and paper processing facility of IP went on strike. IP managed to continue operations at the mill by hiring replacement workers. In August, the Jay Board of Selectmen, which mostly included striking IP employees, enacted two ordinances, neither of which is involved in the present appeal. One of the ordinances prohibited IP from housing replacement workers at the mill, while the other authorized town officials to oversee enforcement of various federal, state, and local environmental laws and regulations at the mill. Apparently in response to a lawsuit filed by IP to invalidate these ordinances, again unrelated to this appeal, the Board repealed them voluntarily- In November 1987, the town’s legal counsel, at the Board’s behest, drafted the Jay Environmental Control and Improvement Ordinance (the Ordinance). This third Ordinance — the subject of IP’s present attack — is an elaborate regulatory scheme. Its primary requirement is that Jay industries and businesses obtain such a permit from a special planning board before they may discharge pollutants. In order to obtain a permit, an applicant must comply with local environmental regulations contained in the Ordinance. In December the Board proposed that the Ordinance be put to a public referendum. Two public hearings followed, and the town enacted the Ordinance by referendum vote on May 21, 1988. The strike was resolved in IP’s favor after commencement of this suit. A second referendum followed, where Jay citizens rejected a proposal to repeal the Ordinance. The Ordinance remains the law of Jay. IP’s amended complaint lists several counts, all of which were dismissed below on various motions. IP appeals the district court’s Rule 12(c) dismissal of Counts I, II, and III, which present the following contentions: (1) the Jay Ordinance imper-missibly interfered with.IP’s collective bargaining rights in the 1987-88 strike, curtailing self-help and frustrating the operation of the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151 et seq.; (2) the Ordinance represents an abuse of governmental powers depriving IP of its Equal Protection and Due Process rights guaranteed by the Fourteenth Amendment to the United States Constitution; and (3) the Ordinance violates Maine’s conflicts of interest statute, 30 M.R.S.A. § 2251 (1978), and Maine common law. Standard of Review We review the district court’s grant of the Town’s Fed.R.Civ.P. Rule 12(c) motion de novo, as if we were considering the Town’s motion anew. See Frissell v. Rizzo, 597 F.2d 840, 845 (3d Cir.), cert. denied, 444 U.S. 841, 100 S.Ct. 82, 62 L.Ed.2d 54 (1979). Like the trial court, therefore, we accept as true all material allegations of the amended complaint, and construe them in favor of the complaining party, IP. Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir.1988). Finally, we cannot uphold the district court’s action “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claims which would entitle [it] to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957); Rivera-Gomez, 843 F.2d at 635. See also, Barber v. M/V BLUE CAT, 372 F.2d 626, 629 (5th Cir.1967). NLRA Preemption IP first attacks the Jay Ordinance on the ground that it violates the policy of Congress, implicit in the NLRA, to leave certain unregulated self-help weapons in a labor dispute, such as lockouts, strikes, and the hiring of replacement workers, to the “free play of economic forces.” Machinists v. Wisconsin Employment Relations Comm’n, 427 U.S. 132, 140, 96 S.Ct. 2548, 2553, 49 L.Ed.2d 396, 403 (1976). IP urgently stresses that the Supreme Court’s opinion in Golden State Transit Corp. v. Los Angeles, 475 U.S. 608, 106 S.Ct. 1395, 89 L.Ed.2d 616 (1986), should control this appeal. According to Golden State, the crucial inquiry posed by the “free play” argument is whether the state or municipal action complained of “frustrates the effective implementation” of the NLRA. Id. at 615, 106 S.Ct. at 1399, 89 L.Ed.2d at 624 (quoting Machinists, 427 U.S. at 148, 96 S.Ct. at 2357, 49 L.Ed.2d at 408). Because it is critical to IP’s approach, we think Golden State warrants detailed discussion. In Golden State, a company which operated taxicabs in the Los Angeles area applied to the city for renewal of its operating franchise. The city’s Board of Transportation Commissioners initially recommended renewal of the franchise. While the application was pending, the cab company’s drivers went on strike, halting its operations. The City Council consequently delayed action on the renewal application and ultimately defeated a motion to extend the franchise, allowing it to expire. During discussion on the application, the Council reached a consensus “for rejection of the extension with a possibility for reopening the issue if the parties settled their labor dispute before the franchise expired. ...” Id. at 611, 106 S.Ct. at 1397, 89 L.Ed.2d at 621. The Supreme Court, applying the Machinists preemption principle, held the City Council’s action illegal. The Machinists doctrine, the Court stated, “precludes state and municipal regulation ‘concerning conduct that Congress intended to be unregulated.’ ” Id. at 614, 106 S.Ct. at 1398, 89 L.Ed.2d at 623 (quoting Metropolitan Life Insur. Co. v. Massachusetts, 471 U.S. 724, 749, 105 S.Ct. 2380, 2394, 85 L.Ed.2d 728, 746 (1985)). The Court determined that the city’s effective “positive durational limit” on the labor dispute amounted to an impermissible entry “ ‘into the substantive aspects of the bargaining process to an extent Congress has not countenanced.’ ” Id. at 616, 106 S.Ct. at 1399, 89 L.Ed.2d at 624-25 (quoting Machinists, 427 U.S. at 149, 96 S.Ct. at 2357, 49 L.Ed.2d at 409). By conditioning the franchise grant on settlement of the strike, the Court held, the City Council infringed on the free play of economic forces. Such a trespass constituted a direct, tangible interference with the labor dispute and was preempted by the NLRA. Id. at 619, 106 S.Ct. at 1401, 89 L.Ed.2d at 627. As the trial court correctly determined, the instant case is easily distinguishable from Golden State. IP’s proposal to apply that case here would require an unprecedented extension of the Machinists doctrine and NLRA preemption. See 736 F.Supp. at 366. First, while IP focuses exclusively on the actions of the Jay Board of Selectmen, the Board did not enact the environmental Ordinance. The citizens of Jay by referendum voted in the proposed Ordinance after holding two public hearings. The Board’s role, however important, was limited to directing that the bill be drafted and proposing it to the citizens of Jay. In contrast, in Golden State the Los Angeles City Council took direct unilateral action against the employer to pressure it to submit to striking employees’ demands. IP would have this Court invalidate the Jay Ordinance on the tenuous “but-for” basis that the Ordinance would not have become law had the Board not proposed it. We are unwilling to construe Golden State so broadly as to require inquiry, on the facts of this case, into the motives of the selectmen prior to the Board’s drafting and proposing the Ordinance. In any event, we prefer not to rest our holding on this ground, for we are unwilling to apply Golden State to such state action which only remotely affects the bargaining powers of the parties to a labor dispute. While the Court in Golden State may have retreated from its prior steadfast position that only state actions passed with the intent of directly altering the substantive outcome of a labor dispute should be preempted, it remains the law that actions which regulate activity only peripherally related to labor policy, without placing conditions on the conduct of the parties to the dispute, are not subject to preemption. See id. 475 U.S. at 612, 106 S.Ct. at 1397, 89 L.Ed.2d at 622. In Golden State, the City Council expressly conditioned the employer’s franchise renewal on the settlement of the labor dispute. Id. at 619, 106 S.Ct. at 1401, 89 L.Ed.2d at 627. The nexus between the City’s action and the parties’ collective bargaining positions was indisputable, and the City’s placement of conditions on renewal of the employer’s operating franchise forced its hand in the dispute. On the other hand, reading IP’s complaint in its most favorable light, there is no reasonable, conceivable set of facts suggested by IP to convince either the trial court or this Court that the Jay Ordinance forced IP to accede to the unions’ demands. See Conley, 355 U.S. at 45-46, 78 S.Ct. at 102, 2 L.Ed.2d at 84. The Ordinance’s effect on IP’s bargaining position is no more direct than that of the state statute regulating hospital cost increases in Massachusetts Nursing Ass’n v. Dukakis, 726 F.2d 41 (1st Cir.1984). There we held that the statute was not preempted by the Labor Management Relations Act (LMRA), 29 U.S.C. §§ 141 et seq., because it only indirectly prejudiced a nurses’ union’s bargaining position. Id. at 45. Examining the implications of the union’s argument, identical to IP’s here, the Court stated: [I]n any industry the price of whose product or service — such as electric power, telephone, natural gas, or even rent controlled real estate — is regulated, a state would find its regulatory system vulnerable to preemptive attack on the ground that the overall control of price was too inhibiting an influence on collective bargaining. Logic, however, would carry beyond simple price control. Any state or municipal program that substantially increased the costs of operation of a business in a competitive market would be similarly vulnerable to the preemption argument. Id. (emphasis added). See also, Southwestern Bell Telephone Co. v. Arkansas Public Service Comm’n, 824 F.2d 672 (8th Cir.1987); Washington State Nurses Ass’n v. Washington State Hosp. Comm’n, 773 F.2d 1044 (9th Cir.1985), cert. denied, 475 U.S. 1120, 106 S.Ct. 1637, 90 L.Ed.2d 183 (1986) (rejecting similar preemption challenges). IP’s is the extreme contention contemplated and expressly rebuffed in Massachusetts Nursing Ass’n. Furthermore, the present allegations are not significantly different from those ás-serted by the union in Massachusetts Nursing Ass’n even though IP charges that environmental health and safety was merely a pretext for the Board’s actual plan to pressure IP. The fact that the Jay Ordinance is the product of a popular referendum robs this argument of its thunder and leads us to restate our belief that indirect intrusions into collective bargaining, such as “[c]lean air and water laws, selective cutting requirements in forest operations, industrial safety standards, [and] tax increases," are rarely preempted by labor statutes such as the LMRA and the NLRA. 726 F.2d at 45 (emphasis added). Thus, we refuse IP’s invitation to extend Golden State to a situation which amounts at best only to a remote, indirect trespass on the employer’s effective bargaining powers. Equal Protection and Substantive Due Process IP’s claim that the Ordinance represents an abuse of governmental powers and deprives IP of the Equal Protection and Due Process rights guaranteed it by the Fourteenth Amendment to the United States Constitution is similarly without merit. The trial court applied the rational basis test and found that the Ordinance is not constitutionally infirm since it is rationally related to legitimate municipal ends. We agree. Social or economic legislation such as the Jay Ordinance, which purports to protect the health and safety of Jay citizens, is presumed to be valid and not violative of the Due Process or Equal Protection Clauses “if the classification drawn by the statute is rationally related to a legitimate state interest.” Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3354, 87 L.Ed.2d 313, 320 (1985); Schweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct. 1074, 1080, 67 L.Ed.2d 186, 195 (1981). Moreover, the Court is obliged to give governments wide latitude in creating social and economic legislation such as the Ordinance: “the federal courts do not sit as arbiters of the wisdom or utility of these laws.” Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Airport Authority, 825 F.2d 367, 370 (11th Cir.1987) (citing Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 469, 101 S.Ct. 715, 726, 66 L.Ed.2d 659, 672 (1981)). Without circumstances to induce heightened judicial scrutiny, which are totally absent here, we are entitled to presume the Ordinance to be valid and are not required to delve into the motivations of the Board members who proposed and drafted the Ordinance. The district court’s thorough analysis here needs no improvement: while courts may look to legislators’ motives where a suspect or quasi-suspect classification is subjected to discrimination or a fundamental right is infringed, see e.g., Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (Establishment Clause); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (race discrimination), absent these circumstances, we “ ‘will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.’ ” International Paper, 736 F.Supp. at 364 (quoting United States v. O’Brien, 391 U.S. 367, 383, 88 S.Ct. 1673, 1682, 20 L.Ed.2d 672, 683 (1968)). Once again, in consideration of the critical role that Jay’s citizens played in enacting the Ordinance we are satisfied in concluding that the selectmen’s motives are not subject to scrutiny. As the district court stressed, “[t]he referendum, referred to as ‘the people’s veto’ in the Maine Constitution ... serves as a political cheek on possible Selectman bias and, therefore, further limits the need for judicial scrutiny of illicit personal motives of municipal officers.” Id. Focusing upon the Ordinance itself, there cannot be any doubt that it serves the legitimate governmental interest of controlling the discharge of pollutants into the air, water, and ground, and that its regulatory means are logically related to its stated purpose of protecting “the public health, safety and welfare of the inhabitants of the Town of Jay and ... the Town of Jay’s environment.” Jay Environmental Control and Improvement Ordinance § 1-102. We conclude that IP did not demonstrate or even suggest any conceivable Conley set of circumstances which could have overcome the presumption of validity which the Ordinance enjoys. IP’s 42 U.S.C. § 1983 substantive due process and equal protection claims were therefore properly dismissed. Conflict of Interest Finally, IP argues that the Ordinance is void under Maine’s conflicts of interest statute and the state’s common law. IP argues that each of the Jay Board members had at least an indirect pecuniary interest in passing the Ordinance, and therefore the district court should have allowed IP’s claim under this statute to go forward. The complaint contains no allegations that the Board members’ “pecuniary interest” fits within the statutory definition, however, which provides that a conflict of interest is present where the official is: ... an officer, director, partner, associate, employee or stockholder of a private corporation, business or other economic entity to which the question relates ... [and] only where the official is directly or indirectly the owner of at least 10% of the stock of the private corporation or owns at least a 10% interest in the business or other economic entity. 30 M.R.S.A. § 2251(4). IP’s failure to allege that any member of the Board satisfies this provision is fatal to its statutory claim. Maine common law notions of conflicts of interest sufficient to merit the invalidation of a municipal ordinance are broader than § 2251, but not as broad as IP would have us interpret them to be. All of the eases upon which IP relies involve the conferring of a pecuniary benefit to be gained directly and personally from the municipal action. See, e.g., Tuscan v. Smith, 130 Me. 36, 153 A. 289 (1931) (voiding a lease entered into by Town selectmen where the Chairman of the Board had a direct financial interest in the affairs of the lessee); Hochberg v. Borough of Freehold, 40 N.J.Super. 276, 123 A.2d 46 (1956) (invalidating a zoning ordinance amendment where a planning board member’s business stood to benefit directly from the new ordinance). Compared to these traditional instances of voidable municipal actions, IP’s argument is an entirely different animal. IP suggests that the Jay selectmen had a conflict in proposing the environmental Ordinance because of the indirect pecuniary interest they held in seeing the labor dispute resolved in the unions’ favor. The benefits which were presumed to inure to the individual Jay selectmen were hardly certain, and in fact did not come about, unlike the clear advantages present in the cited cases. Established precedent does not support the attenuated construction of Maine common law IP proposes, and we refuse to make such an extension here. In light of the foregoing discussion, we conclude that the district court was clearly correct in disposing of all of the matters presented in this appeal by way of Rule 12(c) dismissal. Affirmed. . Rule 12(c) provides, in pertinent part: (c) Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings____ Fed.R.Civ.P. 12(c). . This general rule does not apply when the statute involves suspect classifications such as race, alienage, or national origin, or "quasi-suspect" classifications such as gender and illegitimacy, or if the statute affects personal and fundamental rights. Id. 473 U.S. at 440-41, 105 S.Ct. at 3254-55, 87 L.Ed.2d at 320-21. The Jay Ordinance does not single out and govern any suspect or quasi-suspect classifications of persons; nor does it abridge any fundamental right. . Maine’s conflicts of interest statute is found at 30 M.R.S.A. § 2251 (1978), and provides in relevant part: 1. Voting. The vote of a body is voidable when any official in his official position votes on any question in which he has a direct or an indirect pecuniary interest. . We also agree with the district court that the plain language of the statute makes the vote taken by the Board voidable rather than void, and leaves discretion whether to uphold such actions to the courts. 736 F.Supp. at 367. Furthermore, taking the allegations in the complaint as true, we agree with the district court that under the circumstances the environmental Ordinance would not have invoked application of the statute because of the important factor of the participation of the citizens of Jay, first in passing the Ordinance by referendum and later in rejecting its repeal in a subsequent referendum. See id. Considering the loose foundation for IP’s claim of an actionable “conflict” and the democratic participation of the Jay citizenry, the district court properly dismissed this claim.

Adler v. Lewis

J. BLAINE ANDERSON, Circuit Judge: The plaintiffs, numerous environmental organizations and one private citizen, appeal from the district court’s judgment dissolving the injunction prohibiting acquisition of right-of-way for the proposed highway expansion by State and Federal defendants. This appeal involves yet another phase in the continuing saga concerning a corridor for Interstate Highway 90 (1-90) in the state of Washington between the cities of Seattle and Bellevue. The proposed facility consists of an eight-lane, limited access highway consisting of two three-lane roadways for the use of private motor vehicles and a two-lane center roadway devoted to the use of transit car pools and limited general traffic from Mercer Island. The project is 6.9 miles in length located between 1-5 in Seattle and 1-405 near Bellevue, and generally follows the alignment of the existing highway facility in the corridor. The new facility will incorporate a new tunnel immediately adjacent to the existing tunnel through Mt. Baker Ridge, require the construction of a new floating bridge adjacent to the existing floating bridge across Lake Washington, and will contain two extensive “lidded” sections in Seattle and Mercer Island. Access to and from the facility is provided by several interchanges throughout its length: to Interstate 5, the western terminus of the project, by a major interchange with the center lane ramp terminating at the existing South Dearborn Street, and at another major interchange at the project’s eastern terminus, an already completed portion of 1-90, tying the facility into Interstate 405, the major north-south highway facility east of Lake Washington. I. BACKGROUND The facts pertinent to this appeal are here recited briefly, but for a complete understanding of this case’s litigation, see Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971), Lathan I, the district court opinion on remand, Lathan v. Volpe, 350 F.Supp. 262 (W.D.Wash.1972), and the second appeal to this court, Lathan v. Brinegar, 506 F.2d 677 (9th Cir. 1974), Lathan II. This court, in Lathan I, reversed the trial court’s denial of a preliminary injunction, holding, inter alia (1) that the State and Federal defendants were to prepare an environmental impact statement (EIS) for the project pursuant to the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321, et seq. (1970), and (2) that the displaced persons relocation plan prepared by defendants was insufficient to provide assurances of adequate housing to comply with the Uniform Relocation Act, 84 Statute 1894 (URA). An injunction was entered by the district court pursuant to this court’s instruction, specifying that the defendants were enjoined from acquiring the right-of-way pending compliance with “applicable federal law.” Lathan I, 455 F.2d at 1122. Subsequently, a partial EIS was prepared (for the segment between 1-5 in Seattle and Mercer Island — “Seattle Segment”) and a new relocation plan. Following the ruling of the district court, this court in La-than II affirmed, finding the Environmental Impact Statément (EIS) and § 4(f) statements inadequate. The Lathan II court, however, reversed a portion of the district court’s' decision and ordered that a new public hearing be held for the entire length of the 1-90 project between 1-5 and 1-405, pursuant to 23 U.S.C. § 128. In addition, this court ordered that an EIS consistent with the requirements of NEPA was to be the basis of the public hearing, and continued the injunction pending com- • pliance. No issue was raised regarding the district court’s determination that the defendants had complied with the requirements of the URA based on the new relocation plan. After Lathan II, WDOT prepared a new draft EIS covering the entire uncompleted portion of the 1-90 project to serve as the basis for new public hearings under § 128(a). Three public hearings were held during January and February 1976. Following these hearings, it was clear that conflict existed regarding the size of the then ten-lane plan between the .State and local affected jurisdictions. In an effort to resolve those conflicts, negotiations were initiated between the State of Washington DoT and the cities of Seattle, Mercer Island, and Bellevue, King County, and METRO concerning further project development. As a result of these negotiations, an interjurisdictional consensus was reached in December 1976. This Memorandum of Agreement (MOA) provided for an eight-lane plan, continued incorporation of all environmental protection measures which had previously been incorporated into the larger project, and an independent study to be undertaken of various “transit access” provisions at both termini of the 1-90 project (Seattle on the West and Bellevue on the East), with the parties subsequently seeking Federal funds to finance the access project. A Final EIS for the eight-lane project was prepared by WDOT and submitted to the Secretary of Transportation on April 12, 1977, including a separate report addressing the § 4(f) Involvements of the project. Judge Thompson, Jr., following agreement by the parties, wrote to the Secretary of Transportation requesting a decision. September 7, 1978, the Secretary issued his § 4(f) findings in the “§ 4(f) Determination,” that there were no feasible and prudent alternatives to the use of the § 4(f) lands and that the project included all planning to minimize harm to such § 4(f) lands. Secretary Adams approved the project encompassing the entire uncompleted portion of the 1-90 project between 1-5 and the 1-405 based upon the FEIS and “§ 4(f) Analysis” in his “Decision Document” dated September 20, 1978. The Final Environmental Impact/§ 4(f) Statement was approved and adopted by the Federal Highway Administration (FHWA) on September 22, 1978. Defendants moved on October 3, 1978 to dissolve the injunction entered after Lathan I and requested the district court to enter an order establishing a schedule to control the course of future litigation in the consolidated cases. The parties stipulated, notwithstanding other issues in the case, that WDOT should proceed with necessary safety improvements within the 1-90 corridor, including removing the “bulge” in the Lacey V. Murrow floating bridge. During the course of discovery proceedings, many parties plaintiff in the consolidated actions were dismissed. The pretrial order framed issues under NEPA, Federal Aid Highway Act 23 U.S.C. §§ 128(a), 134(a), and 138, the Clean Air Act, 42 U.S.C. § 1983, and the Administrative Procedure Act, 5 U.S.C. § 551, et seq. Trial was to the court in June 1979. The parties submitted Proposed Findings of Fact and Conclusions of Law as the court requested. On August 27, 1979, the court entered its Judgment dissolving the injunction and ruling for the defendants, based upon its Findings of Fact and Conclusions of Law dated August 22, 1979. II. DISCUSSION A. District Court Duty to Take a “Hard Look” We summarily dispose of appellants’ assertion that the district court erred in “mechanically” adopting findings of fact and conclusions of law. There is virtually nothing in this record to support the bald assertion. The evidence is, however, that the court studied the findings and conclusions submitted by both parties and that some were completely rewritten or substantially modified. The principles we apply are well established and we see no need to reiterate them once again. See, Hagans v. Andrus, 651 F.2d 622 (9th Cir.), cert. denied, Hagans v. Watt, - U.S. -, 102 S.Ct. 313, 70 L.Ed.2d 157 (1981); Mayview v. Rodstein, 620 F.2d 1347 (9th Cir. 1980); Westside Property Owners v. Schlesinger, 597 F.2d 1214 (9th Cir. 1979); and Photo Electronics Corp. v. England, 581 F.2d 772 (9th Cir. 1978). Appellants’ argument that the district court did not conduct an objective review is based upon a letter by the court to the federal Secretary of Transportation. Appellants contend the court had a “personal commitment to seeing the project through to completion, . . . [the judge had] made [a] personal written plea to Secretary Adams, urging him to expedite required approvals.... ” Brief of Appellants at 13. From our analysis, there is nothing in the record to indicate the trial court acted with bias toward the defendants and their program. (RT 734). The judge remarked that he had written to the Secretary, requesting him “to approve this thing or not approve it, or at least make a decision on it ...” (RT 734). The bold assertions of one-sidedness by appellants are not supported by the record. The appellants also contend- the district court failed to independently review the appellees’ administrative actions by ignoring central issues and excluding relevant evidence. These assertions relate to the adequacy of the EIS and the section 4(f) statement, and will be considered within the discussions of these issues, respectively. B. 4(f) Determination Appellants raise several questions pertaining to the Secretary of Transportation’s compliance with the Department of Transportation Act of 1966, § 4(f), 49 U.S.C. § 1653(f) (1970). The national policy, announced in § 4(f) and in identical language of § 18(a) of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138 (1970), is to take “special effort ... to preserve the natural beauty of the countryside and public parks and recreation lands. . . . ” Section 4(f) provides: “It is hereby declared to be the national jiolicy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed. After August 23, 1968, the Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State, or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use.” 49 U.S.C. § 1653(f). The issues raised by appellants parallel the questions involved in judicial review as announced by the Supreme Court in the leading case, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). In discussing § 4(f), the Court rejected both the substan-' tial evidence test and the de novo review of whether the decision was “unwarranted by the facts.” Though the Secretary’s decision is entitled to a presumption of regularity, the reviewing court still engages in a substantial inquiry because the presumption does not “shield his action from a thorough, probing, in-depth review.” 401 U.S. at 415, 91 S.Ct. at 823, 28 L.Ed.2d at 153. The opinion enunciates three questions for the reviewing court to consider. First, the court must examine whether the Secretary acted within the scope of his authority. Analyzing this facet of the review, the court must determine if, on the facts, the Secretary’s decision can reasonably be said to be within the small range of choices Congress specified, and whether the Secretary could have reasonably believed in that, particular case there were no feasible and prudent alternatives, or that the alternatives involved unique problems. 401 U.S. at 416, 91 S.Ct. at 823, 28 L.Ed.2d at 153. The Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1964 ed., Supp. V) requires the determination actually made not be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” to avoid being set aside by the reviewing court. Second, in examining the decision, the reviewing court must evaluate whether “the decision was based on a consideration of the relevant facts and whether there has been a clear error of judgment.” Overton Park, 401 U.S. at 416, 91 S.Ct. at 823-4, 28 L.Ed.2d at 153. The third and final inquiry is whether the Secretary’s action followed the necessary procedural requirements. Appellants have not voiced any objection to the Secretary’s compliance with procedural requirements. Instead, the issues presented are: (1) whether the Secretary relied on improper considerations in his § 4(f) determination, (2) the correctness of the conclusion that there were no feasible and prudent alternatives, and (3) whether there was a failure to incorporate all possible planning measures to minimize harm. 1. Application Section 4(f) is triggered only when the Secretary of Transportation is asked to approve a transportation program or project seeking to employ federal funds, which requires the “use” of land from a public park, recreation area, wildlife or waterfowl refuge, or from an historic site. The labeling of property as “used” or “not used” is the prerequisite to further examination and to compliance with the provisions of § 4(f). This phase of § 4(f) was not discussed by the Court in Overton Park. It was not disputed that the highway, slated to dissect Overton Park by separating the zoo from the rest of the park, would be a “use” within the meaning of the statute; it was acknowledged. Here, the assertion is the Secretary incorrectly concluded that, of the 50 potential sites, 29 were “not used,” and, as a result, failed to examine § 4(f)’s two requirements with respect to those sites. Appellants argue some of these 29 sites are closer to the project than the site classified as used in Stop H-3 Association v. Coleman, 533 F.2d 434 (9th Cir.), cert. denied, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 610 (1976). Though correct in discussing Stop H-3 for the interpretation of “use,” appellants do not correctly characterize the opinion as emphasizing the proximity between the project and the threatened site as the crucial factor. This court discussed the geographic closeness of Pohaku Ka Luahine (the protected site, a petroglyph rock) to H-3 (the proposed highway), not merely in terms of distance, but rather its utility or importance as a site would be impaired by the highway’s location, and hence was “used.” Similarly, in Brooks v. Volpe, 460 F.2d 1193 (9th Cir. 1972), the court found a campground to be used, within the meaning of § 4(f), when encircled by the proposed highway project. There would be an adverse impact on the campground from the highway since its isolation would be interrupted. The term “use” is to be construed broadly, not limited to the concept of a physical taking, but includes areas that are significantly, adversely affected by the project. Department of Transportation Order No. 5610.1A, para. 9(c)(1), 36 Fed.Reg. 23681 (1971). Even off-site activities are governed by § 4(f) if they could create sufficiently serious impacts that would substantially impair the value of the site in terms of its prior significance and enjoyment. D.C. Federation of Civic Associations v. Volpe, 459 F.2d 1231, 1239 (D.C.Cir. 1971), cert. denied, 405 U.S. 1030, 92 S.Ct. 1290, 31 L.Ed.2d 489 (1972). The importance of this analysis is obvious since absent a determination of “use,” the section’s provisions do not apply. An analogy can be drawn between this classification and the initial determination that a project is one which “significantly affects the quality of the human environment” involving preparation of an environmental impact statement (EIS) as per the National Environmental Policy Act of 1969 (NEPA), § 102(2)(c), 42 U.S.C. § 4322(2)(c) (1970). The threshold test requiring preparation of NEPA’s impact statement is met when a plaintiff alleges “facts which, if true, show that the proposed project would materially degrade any aspect of environmental quality.” Environmental Defense Fund v. Armstrong, 487 F.2d 814, 817, n.5 (9th Cir. 1973), cert. denied, 416 U.S. 974, 94 S.Ct. 2002, 40 L.Ed.2d 564 (1974), overruled on other grounds, Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 552, n.3 (9th Cir. 1977). 2. Secretary’s Determination This court, in reviewing the Secretary’s decision, “must satisfy itself that the Secretary evaluated the highway project with the mandate of § 4(f) clearly in mind.” Stop H-3, 533 F.2d at 445; Overton Park, 401 U.S. at 416, 91 S.Ct. at 828, 28 L.Ed.2d at 154. The combined Final Environmental Impact/Section 4(f) Statement recites the standard applied here for determining use: “A site is considered ‘used’ whenever land from or buildings on the site are taken by the proposed project, or whenever the pro])osed project has significant adverse air, water, noise, land, accessibility, aesthetic, or other environmental impacts on or around the site, as per the Stop H-3 Association v. Coleman [opinion].” FEIS, vol. IV at 4. Using this standard, the Secretary concluded that of the 50 potential § 4(f) sites, only 18 were used. The FEIS/§ 4(f) document was used as a basis for the Secretary’s decision; we examine it to determine if consideration was given according to § 4(f) mandates. Appellants’ argument that the Secretary incorrectly determined that only 21 of the 50 sites were “used,” is not supported by references to the record of particular sites that should have been classified as adversely affected, i.e., “used.” We independently found the differences in the number of sites discussed in these documents, but believe the failure to specifically discuss the four sites in the “§ 4(f) Determination” and in the Secretary’s “Decision Document” is not significant nor dispositive. All 50 sites, “used” and, “unused,” were thoroughly investigated during this long and tedious process. All sites are treated extensively in the “§ 4(f) Analysis.” We read all three documents together as no one of them alone, fully satisfies the commands of § 4(f). As noted above, the “§ 4(f) Analysis” provides the standard the Secretary applied in determining “use,” the “§ 4(f) Determination” cites alternatives considered, the conclusion that there is no feasible and prudent alternative to the use of 18 sites, and recites efforts to minimize harm. The “Decision Document” records the decision of the Secretary that no alternatives are feasible and prudent to “the use of the parks and historic sites required for the project, and that all possible planning to minimize harm to the affected areas has taken place,” and his “decision to approve construction of 1-90 as proposed by the Washington State Department of Transportation.” Id., “Decision Document,” at 5 and 1, respectively. We first examine the “use” classification applying the Overton Park analysis and then the Secretary’s § 4(f) conclusion by the same standard. Looking to the scope of the Secretary’s authority, any conclusion utilizing an appropriate standard relative to the 50 sites would satisfy the first segment as being within the “small range of choices the Secretary could make.” The second part of the question concerning the Secretary’s authority encompasses whether he could have reasonably believed that only 18 of the 50 were used. Attention is given in the “§ 4(f) Analysis” to all 50 sites, detailing possible environmental effects from this project. This section appears reasonably complete, discussing such factors as noise, air quality, aesthetics, access and more. The Secretary, in his “Decision Document,” states in part, “In making my decision, I have before me the EIS, including the submission pursuant to section 4(f), and other elements of the administrative record.” “Decision Document,” p. 3. He lists several other reports he has reviewed in making his decision. The Secretary concludes the paragraph, “I have considered both the adverse and beneficial impacts of alternatives and the measures which will be taken to minimize the adverse impacts.” The district court found the Secretary could have reasonably believed that less than the 50 sites were used. We agree. These findings are not clearly erroneous. The Secretary determined “use” based on the studies before him, which considered relevant facts concerning environmental impacts. Moving to the Secretary’s “§ 4(f) Determination,” relative to the alternatives to using the 18 sites, we review it under the same standard, Overton Park. The Supreme Court clarified the meaning attached to “feasible and prudent alternatives.” Recognizing that “feasible” allows for little administrative discretion, the Court considered it to mean, as a matter of “sound engineering it would not be feasible to build the highway along any other route.” Overton Park, 401 U.S. at 411, 91 S.Ct. 821, 28 L.Ed.2d 150, citing 114 Cong.Rec. 19915 (1968) (statement by Rep. Holified.) Whether alternative, feasible routes would be “prudent” was not intended to focus on cost and community disruption unless the results reached “extraordinary magnitudes” or was not prudent because there were “truly unusual factors present in a particular case.” Overton Park, 401 U.S. at 413, 91 S.Ct. at 822, 28 L.Ed.2d at 151. The Secretary concluded that there was no feasible and prudent alternative to the use of the 18 sites. Appellants argue he based his decision on irrelevant factors and an inadequate and outdated “§ 4(f) Analysis.” Appellees assert the Secretary’s conclusion is properly based on findings of fact not clearly erroneous, including (1) other alternatives would still require “use” of § 4(f) lands, (2) other corridors would cause severe community disruption, (3) design alternatives involve their own § 4(f) involvement and would not serve the function of the project, and (4) even the no-build alternative would perpetuate congestion. Though most alternatives appear to deal with the composite project, the “§ 4(f) Determination” states, “the alternatives ■ discussed here are generally common to all or to a number of the § 4(f) lands associated with the proposed project.” “§ 4(f) Determination” at 1. The Secretary’s decision is entitled to a presumption of regularity. Absent argument by appellants pointing to the record and demonstrating with specificity the alleged errors of judgment or irrelevant factors that formed the basis for his decision, we are not inclined to make their case for them. Even if the decision of the Secretary be different from the one this court would make if it were our responsibility to choose, we will not substitute our judgment for that of the Secretary. We have not been directed to any portion in the record demonstrating an erroneous decision and, as a result, find no grounds to disturb the Secretary’s conclusion that there are no feasible and prudent alternatives to the use of such § 4(f) lands. Once the Secretary determines that § 4(f) lands will be adversely impacted and finds there are no feasible and prudent alternatives to such use, he must address the final portion of § 4(f) which requires a finding that “such program includes all possible planning to minimize harm to such park . . . resulting from such use.” 49 U.S.C. § 1653(f)(2). Appellants assert § 4(f) requires all measures “technically possible ... be implemented” if there is no feasible and prudent alternative to the use of protected lands. This statement goes beyond where this court is willing to venture and is not required by the Act nor existing precedent. Other circuits, in addressing this question, have said that implied within the statement “all measures,” is the condition that such efforts to minimize harm be feasible and prudent, or reasonable. Louisiana Environmental Society, Inc. v. Coleman, 537 F.2d 79, 86 (5th Cir. 1976); Citizens to Preserve Overton Park v. Volpe, 335 F.Supp. 873, 883 (W.D.Tenn.1972) (§ 4(f) requires “all reasonably possible planning”). See generally, D.C. Federation of Civic Associations v. Volpe, 459 F.2d 1231, 1239 (D.C.Cir. 1971), cert. denied, 405 U.S. 1030, 92 S.Ct. 1290, 31 L.Ed.2d 489 (1972); and Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693, 700-701 (2d Cir. 1972). Such a reading fully considers the practicalities involved and yet maintains the strict command of the section’s language. Monroe County characterizes the section as creating an “affirmative duty” to minimize the damage to parkland as: “[a] condition precedent to approving] such a taking for highway purposes where federal lands are involved; and the Secretary must withhold his approval unless and until he is satisfied ... full implementation of such planning ... is an obligated condition of the project.” Id., 472 F.2d at 701. This second phase of § 4(f) is discussed by the District of Columbia Circuit which concludes it involves far more than merely calculating the number of acres to be asphalted. D.C. Federation, 459 F.2d 1231. The Court emphasized, “the location of the affected acres in relation to the remainder of the parkland may be a more important determination than the number of acres affected.” Id., 459 F.2d at 1239. It is also important to note the bifurcated analysis of the two considerations of § 4(f). The Fifth Circuit has discussed the completely unconnected nature of the two § 4(f) considerations: “[t]he significant difference between . . . subsections (1) and (2) assays is that considerations which might make an alter-' hate imprudent (such as displacement of persons or businesses or a Title 6 problem) are simply not relevant to determining whether a different path would minimize harm to the [value of the protected lands].” Louisiana Environmental Society, 537 F.2d at 86. Inquiry under subsection (2) of § 4(f) requires a balancing of the harm to the site by the proposed project, with the harm to the same site by another alternative or a plan to implement mechanisms to diminish that particular harm. There may be, as appellants assert, some “technical” deficiencies or some actions may not be “technically” correct (the four sites discussed in the “§ 4(f) Analysis” yet not discussed in the Secretary’s final decision). However, even under the exacting § 4(f) requirements, the judicial branch may not “fly speck,” if it appears, in its review, that all factors and standards were considered. Whether or not the reports and studies use the “magic” terminology, there has been a reasonable and thorough review of a voluminous record accumulated over a span greater than ten years, which includes extensive public contribution. Substitution of the 180-acre greenbelt is important here as a measure to minimize harm, though it is not per se dispositive of compliance with the second prong of § 4(f). Even with some of the deficiencies pointed out by the appellants, considering the entire plan and the record as a whole, we are of the opinion that § 4(f) standards have been satisfied. When considering all other alternatives, i.e., the conceptual ones, no-build, nonstructural, corridors north or south, design alternatives, rail transit and safety improvements, as the Secretary did, the conclusion is there has been reasonable compliance, even with the minor deficiencies pressed by appellants. There is a foundation in the record for the reasonable belief that no feasible and prudent alternatives exist and that all possible planning to minimize harm has been undertaken. The district court so found and we agree. As to several areas of the project, the Secretary’s approval was conditional. ■ We are satisfied the project will proceed subject to those conditions. The Secretary and the agencies, both Federal and State, have complied with the prior directives of this court in Lathan I and II, and the mandates of § 4(f). C. NEPA Issues The third argument appellants raise before this court involves the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321, et seq. (hereinafter NEPA). NEPA requires the preparation of an environmental impact statement (EIS) under § 102(2)(c), when a federal agency recommends “proposals for legislation and other major Federal actions significantly affecting the quality of the human environment....” 42 U.S.C. § 4332(2)(c). One purpose of the EIS is to “provide decision-makers with an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in light of its environmental consequences.” Trout Unlimited v. Morton, 509 F.2d 1276, 1282 (9th Cir. 1974). In addition, preparation “provide[s] the public with information on the environmental impact of a proposed project, as well as encouragefsj public participation in the development of that information.” Id. 1. Standard of Review The appropriate standard for review of the adequacy of an EIS is well established in this circuit as that set forth in § 706(2)(D) of the Administrative Procedure Act: whether the EIS was prepared “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D) (1976). See Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 781 (9th Cir. 1980); Trout Unlimited v. Morton, 509 F.2d at 1282; Lathan II, 506 F.2d at 692-3. The determination of adequacy is essentially pragmatic. Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 552 (9th Cir. 1977) (per curiam). Whether an EIS will be found in compliance with NEPA involves an evaluation of whether the discussion of environmental impacts “reasonably set[s] forth sufficient information to enable the decision-maker to consider the environmental factors and make a reasoned decision.” Westside Property Owners v. Schlesinger, 597 F.2d 1214, 1217 (9th Cir. 1979). See Columbia Basin Land Protection Assn. v. Schlesinger, 643 F.2d 585, 592 (9th Cir. 1981); Coalition for Canyon Preservation, 632 F.2d at 782; Trout Unlimited, 509 F.2d at 1283. Preparing an EIS requires the exercise of judgment; however, a court in its review may not substitute its judgment, but instead is limited to ensuring that the agency has considered the environmental consequences of its action. Strycker’s Bay Neighborhood Council, Inc. v. Karlen, et al., 444 U.S. 223, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980); Lathan II, 506 F.2d at 693. We note initially, compliance with one environmental statute does not assure compliance with another. In Preservation Coalition, Inc. v. Pierce, 667 F.2d 851 (9th Cir. 1982), we discussed the commands found in the National Historic Preservation Act, 16 U.S.C. §§ 470, et seq., and those in NEPA. In the case of historic buildings, each statute “mandates separate and distinct procedures, both of which must be complied with . . . . ” Id. at 859. Similarly, a finding of compliance or noncompliance with § 4(f) of the Department of Transportation Act does not mandate the identical conclusion as to NEPA provisions. 2. Public Hearing Appellants raise five subissues concerning NEPA compliance. We summarily reject their first argument that the public hearing was inadequate since not conducted with an “approved, final EIS.” This court, in Lathan II, did not direct such a document to be the basis of a new hearing. Circulation of even a deficient draft EIS may be sufficient so long as it does not frustrate the goal of obtaining informed agency and public comment. National Wildlife Federation v. Adams, 629 F.2d 587 (9th Cir. 1980); Lathan II, 506 F.2d at 693. See also, Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1022-1023 (9th Cir. 1980). Regulations require the draft EIS to be circulated to enable informed comments at the public hearing. 23 CFR § 177.12. 3. Segmentation Appellants argue in their next subissue that the proposed project did not involve an “adequate highway segment.” The leading case in this circuit is Daly v. Volpe, 514 F.2d 1106 (9th Cir. 1975), which set forth criteria that, when found, demonstrated the portion was suitable for consideration in an EIS for that highway segment. The four considerations are: (1) the section must be as long as practicable to permit consideration of environmental matters on a broad scope, (2) the section must have independent utility, (3) the length of the highway selected must assure an adequate opportunity for the consideration of alternatives, and (4) the segment should fulfill important state and local needs. Id. at 1109-1111; Lange v. Brinegar, 625 F.2d 812 (9th Cir. 1980). In determining whether there was sufficient evidence to establish compliance with NEPA for the segment, we are bound by the findings of the trial court unless they are clearly erroneous. Id. at 815; Sessions, Inc. v. Morton, 491 F.2d 854, 858 (9th Cir. 1974). Appellants question only the first two criteria. We have examined the record, including the Findings of Fact and Conclusions of Law made by Judge Thompson. An adequate discussion of the Daly criteria is found, including that the termini of the project are both major cross-roads (1-5 and 1 — 405) and population centers (Seattle and the City of Bellevue). The court found the project would be able to serve its purposes without the construction of additional facilities, and that there were no pending proposals for major federal action regarding related projects. The Connecticut Street Viaduct had not reached the stage of a “project” and hence did not require the preparation of an EIS. In Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976), the Supreme Court stated the mere contemplation of future action was not sufficient to require preparation of an EIS. In this case, the EIS covered an adequate highway segment. 4. Alternatives Appellants assert the state defendants failed to develop alternatives and thereby violated NEPA. Section 4332(2)(C)(iii) requires alternatives to the proposed action be included in the EIS. However, this court has held the alternatives discussion to be subject to “reasonableness.” Life of Land v. Brinegar, 485 F.2d 460, 472 (9th Cir. 1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974). The three alternatives complained of by the appellants are discussed by the trial court. The withdrawal and substitution alternatives are considered in the FEIS in six variations. In addition, two studies discussing this option are incorporated in the technical appendix. It is further evident that the local jurisdictions (Seattle, Bellevue, Mercer Island and King County) unanimously voted not to withdraw and substitute the funds elsewhere. Neither the Mayor’s second alternative nor the interim High Occupancy Vehicle study aid appellants’ argument. The Mayor’s 2-2-2 alternative was merely a variant of another fully discussed alternative which Brooks v. Coleman, 518 F.2d 17, 19 (9th Cir. 1975), concludes does not have to be addressed. The interim HOV study was not an alternative to the project, but rather improvements to occur before construction begins. We find the range of alternatives considered was sufficient to permit a reasoned choice, and complies with NEPA as the trial court found. Appellants have not shown the district court was clearly erroneous in its determination that the discussion of alternatives in the EIS was reasonable. See Vermont Yankee Nuclear Power Corporation v. NRDC, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978); Daly, 514 F.2d at 1111. 5. Planning Data Base Appellants’ fourth subissue is that the transportation plan developed pursuant to 23 U.S.C. § 134 was not based on correct and accurate data. It is recognized that administrative consideration of evidence creates gaps between the time the record is closed and the decision is made. Vermont Yankee, 435 U.S. at 555, 98 S.Ct. at 1217, 55 L.Ed.2d at 486. There is an end “to the period during which an agency must reopen the record to consider new facts.” Nance v. Environmental Protection Agency, 645 F.2d 701, 708 (9th Cir.), cert. denied, sub nom. Crow Tribe of Indians v. E.P.A., - U.S. -, 102 S.Ct. 635, 70 L.Ed.2d 615 (1981). The standard applied regards administrative action as being “judged by the information then available to it.” Vermont Yankee, 435 U.S. at 553, 98 S.Ct. at 1216, 55 L.Ed.2d at 485. In Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir. 1973), we stated that even if a study contained information relating to environmental effects which would be of assistance to those commenting on an EIS, the mere fact that it is not included “is not enough to sustain a finding that the Secretary violated NEPA by acting prior to the issuance of the study.” Id. at 1281. In evaluating whether the EIS should have been delayed to await the new study, the factors to consider are: (1) the consequences of delay, (2) the present state of information relative to environmental factors, and (3) the relevance and degree of probative value of the information. Id. The trial court found the demographic data unavailable, considered the above-mentioned factors, and concluded the preliminary information would not have significantly altered the conclusions already in the FEIS. We agree. We do not view this case as one requiring the reopening of the decision-making process to review later available data. 6. Impacts Appellants’ final subissue involving NEPA concerns the adequacy of the discussion of impacts in the EIS. Under this heading, appellants object in five areas because they believe the impacts were “inadequately discussed.” What is required of an EIS is “a reasonably thorough discussion of the significant aspects of the probable environmental consequences.” Trout Unlimited, 509 F.2d at 1283. When the question is the adequacy of the consideration, we examine to determine whether consideration of those factors was “arbitrary or capricious.” Nance, 645 F.2d at 712. We have examined the EIS and conclude, as did the trial court, that the impacts of the project on city traffic, air quality, noise, aesthetics, and the social and economic effects were adequately considered. The issue of relocation housing was the subject of a stipulation between the parties and will not be addressed here. The EIS analyzes the effects of increased noise, including a chart demonstrating an increase in 10 decibels is perceived to be twice as loud as the sound if reduced 10 decibels. Appellants argue the EIS is inadequate because it “ignored” three other impacts: energy consumption, effects of locating a ventilation facility in a residential neighborhood, and impacts on drivers using the project. The FEIS discusses the anticipated increases in both fuel, gasoline and diesel, and electricity from the construction and operation of the subject project. Appellants have failed to direct us to impacts, both significant and probable, to result from the project that render the EIS inadequate. The FEIS before us identifies and discusses the significant environmental impacts in sufficient detail and we agree with the conclusion of the district court, NEPA has been satisfied. D. § 1983 Appellants’ final argument is that the district court erred in dismissing their claim for relief under 42 U.S.C. § 1983. The district court is correct in remarking that defendant State officials must be sued in their individual capacity in an action for monetary damages. Edeiman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). We have not found, in reviewing the record and pleadings, a request for relief in the form of damages. Nonetheless, the trial court’s dismissal can be upheld. Following our independent review, we find there is neither a basis in the arguments of the appellants nor in the record to support a § 1983 claim. III. CONCLUSION We have reviewed the action of the district court which, following a “hard look” at the record, dissolved the injunction. We find that action proper and further affirm the findings that the stringent § 4(f) standards and the procedures of NEPA have been satisfied by the appellees. In addition, appellants’ claim for relief under § 1983 was appropriately dismissed. AFFIRMED. . The organizations include: CARHT (Citizens Against R. H. Thompsen Freeway), Central Seattle Community Council Federation, Montlake Community Club, Ravenna Bryant Community Association, Mt. Baker Community Club, Les-chi Improvement Council, Friends of the Earth, Inc., Washington Environmental Council, Madrona Community Council, Seattle Urban League, and the Metropolitan Democratic Club. See footnote 7 and accompanying text. . The one remaining individual plaintiff is Diane Halverson. See footnote 7. . The original Federal defendants included Neil Goldschmidt, the United States Secretary of Transportation, and Russell R. Train, the Environmental Protection Agency Administrator. The district court entered a summary judgment dismissing the defendant EPA and all issues raised under the Clean Air Act, 42 U.S.C. §§ 740Í, et seq. prior to trial. The original state defendants included William A. Bulley, the Secretary of the Washington Department of Transportation, and the Washington Transportation Commission (the authority within WDOT responsible ultimately for determining transportation policies of the State and approving State funding for all highway projects). . Section 4(f) refers to that section in the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f) (1970). See subsequent discussion in part B of this opinion. . The Washington Department of Transportation (WDOT) supplied the Lathan II court, along with its briefs on appeal, a new draft EIS for the “Seattle Segment.” The court in La-than II declined to consider the adequacy of this document and remanded the matter to the district court. . METRO is the Municipality of Metropolitan Seattle, the public agency which operates the transit system in King County. . During the pendency of the appeal in Lathan II, a new action (Adler v. Brinegar) was filed seeking an injunction against the 1-90 project, alleging the same violations of NEPA, § 4(f) and § 128(a), as in the Lathan case. On defendants’ motion, the cases were consolidated for trial in the district court. . The plaintiffs were dismissed for failure to appear at depositions which the court had previously ordered them to attend. As a result, none of the original plaintiffs in the Lathan case remain (only the organizations included as plaintiffs/intervenors remain of the Lathan case) and only one individual plaintiff remains in the Adler case. . See footnote 3. . For a thorough discussion of § 4(f), including legislative history, see Gray, Section 4(0 of the Department of Transportation Act, 32 Md. L.Rev. 326 (1973). . Hereinafter, “§ 4(f) Analysis,” Volume IV: Environmental Analysis for 4(f) Determination. . It is not evident from the “§ 4(f) Determination” (see infra, note 13) nor the Decision Paper on 1-90, Seattle, Washington, by the Secretary of Transportation, September 20, 1978, what standard the Secretary applied, though we presume he applied a correct standard until the contrary is proven. The Secretary cites to the FEIS/§ 4(f) Analysis in his “§ 4(f) Determination” which further supports the conclusion he applied the standard there enunciated. It must be noted, the Decision Paper on 1-90 (hereinafter “Decision Document”) includes discussion of both § 4(0 and NEPA. As a result of this overlap, we look more closely at the “§ 4(0 Analysis" and the “§ 4(0 Determination” for resolution of the § 4(0 issues. . Department of Transportation, Federal Highway Administration Section 4(f) Determination, King County, Washington, Interstate Route 90 Freeway [September 7, 1978] (hereinafter “§ 4(f) Determination,” approved the project and found no feasible and prudent alternative to the use of certain land. This thirteen-page document further excludes from the conclusion of use, five sites that the Environmental Analysis for 4(f) Determination, vol. IV of the Final Envir. Impact/Section 4(f) Statement had included as used. FEIS, vol. IV at 161-163 (hereinafter, “§ 4(f) Analysis”). The Secretary concluded that the proposed 1-90 project would use: Sturgus Park, Judkins Playground, Luther Burbank Park, Lake Washington, Lacey V. Murrow Memorial Bridge and Plaza, Laurence J. Colman Elementary School and Playground, Colman Playground and Playground Building, Our Lady of Mount Virgin Church, LaTumer House, Mount Baker Ridge Tunnels, Residence at 1371 31st Avenue South, Apartment House at 2415 S. Irving Street, Residence at 2231 60th Avenue Southeast, Jeffrey Martine House, and the Residences at 8107 and 8115 Southeast 28th Street. The Secretary excluded Jose’ Rizal Park, Lincoln Landing Park, Sweyolocken Park, Residence at 1323 Hiaw.atha Place South and the Residence at 1409 Lakeside Avenue South. Both the district court and the appellants discuss the figure involving use as “21”— though the number found in vol. IV of the Final Envir. Impact/Section 4(f) Statement is 23 (the last site includes 2 residences). . Appellees assert appellants’ concern over irrelevant factors is confused because their support for the position comes from the “Decision Document” rather than the “§ 4(f) Determination." . This opinion should not be read broadly as commending the method of discussing alternatives employed here, but rather as a statement relating to the function of the appellate process and the responsibilities of the participants thereto. Absent support, bold assertions that factors considered were not truly unusual and therefore did not justify a conclusion of non-prudence, warrant little attention. . Additionally, the definition of a final EIS under 23 CFR § 771.3 states it is the same as the draft EIS, but includes “appropriate revisions to reflect comments received from circulation of the draft EIS and the public hearing process.” . 23 U.S.C. § 134 provides that proposed projects should be “based on a continuing comprehensive transportation planning process carried on cooperatively” by the State and local communities in the area, and that proposed projects take due consideration of their social, economic and environmental effects. Though this section is not part of NEPA, appellants bring the two together by asserting the inadequate transportation plan data was used in the EIS, though more current and accurate data was available.

Adler v. Lewis

SNEED, Circuit Judge, Concurring: I concur in the majority opinion, save for section II.B. With respect to it I concur in its result and add these observations. I. Under section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f) (1970), the Secretary of Transportation, as Judge Anderson points out, may not approve any highway project which uses parkland unless (1) there is no feasible and prudent alternative to the use of such land, and (2) the project includes all possible planning to minimize harm to the park resulting from its use. A project which does not take parkland by condemnation nonetheless may “use” the park, provided the proximity of the project to the park impairs its value in terms of its prior significance and enjoyment. Stop H-3 Association v. Coleman, 533 F.2d 434 (9th Cir. 1976) (Hawaiian stone monument with religious significance); Brooks v. Volpe, 460 F.2d 1193 (9th Cir. 1972) (alpine campground encircled by highway); D. C. Federation of Civic Associations v. Volpe, 459 F.2d 1231, 1239 (D.C.Cir.1971) (parkland under bridge over Potomac). Application of section 4(f), therefore, requires a three-part test: (1) Does the project use (either by actually taking or by impairing the significance and enjoyment of) a public park? (2) Is there a feasible and prudent alternative to such use (typically, not building the highway or choosing a different route)? (3) If there are no reasonable and prudent alternatives, does the project include all possible planning to minimize harm? II. APPLICATION TO 1-90 SEATTLEBELLEVUE CORRIDOR The Secretary here complied with the requirements of section 4(f). The Secretary’s “4(f) Analysis” properly determined that more than twenty of the fifty potentially protected sites would be “used” by the proposed highway. The Secretary’s “4(f) Determination,” when considered in conjunction with the planned “greenbelt,” adequately established that no feasible and prudent alternative to the proposed corridor exists, and that the project includes all possible planning to minimize harm to affected parkland. Although a small number of the more than twenty sites listed as “used” in the “4(f) Analysis” are not discussed in the “4(f) Determination,” the final Environmental Impact Statement, dated March 9, 1978, does in fact consider these sites rather exhaustively, and indicates that planning to minimize harm to them took place. The admonition that we must avoid “fly-speeking” environmental impact statements, Lathan v. Brinegar, 506 F.2d 677, 693 (9th Cir. 1974) (en banc); Isle of Hope Historical Association, Inc. v. United States Army Corps of Engineers, 646 F.2d 215, 220 (5th Cir. 1981); Columbia Basin Land Protection Association v. Schlesinger, 643 F.2d 585, 611 (9th Cir. 1981) (dissent); Citizens for Mass Transit, Inc. v. Adams, 630 F.2d 309, 313 (5th Cir. 1980), is also appropriate in this context. While the decision makers conducting the 4(f) review might have organized their analysis in a better manner, the documentation read as a whole requires that we affirm. The conclusion that all possible planning to minimize harm has been undertaken is strengthened by the fact that affirmative actions to enhance the project environmentally constitute a prominent feature of the project. The size, topography, and measures for revegetation incorporated in the planned greenbelt will greatly.mitigate the loss of parkland from the project. Together with other planning incorporated in the section 4(f) documentation, the conclusion that all possible planning to minimize harm is proper. Section 4(f) has been satisfied. . This prong gives section 4(f) teeth. An alternative is “feasible” unless “as a matter of sound engineering it would not be feásible to build the highway along any other route.” Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 411, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971). A route is “prudent,” despite greater economic costs or community disruption, unless the costs or disruption reach “extraordinary magnitudes” or there are “truly unusual factors” present in a particular case. See id. at 413, 91 S.Ct. at 822. The reason that Overton Park makes it so difficult to uphold a finding that no “feasible and prudent alternative” exists is explained therein. Under usual circumstances, building a highway through a park will always be the least disruptive and cheapest route for the government. The purpose of section 4(f) is to protect parkland from highway use in spite of the “reasonableness” of such use in the absence of the statute. Id. at 411-13, 91 S.Ct. at 821-22. . See note 13 supra (majority opinion).

Aberdeen & Rockfish Railroad v. Students Challenging Regulatory Agency Procedures

Mr. Chief Justice Burger, Circuit Justice. These applications request me, as Circuit Justice for the District of Columbia Circuit, to stay a preliminary injunction entered by a three-judge United States District Court for the District of Columbia. The applicants are the Interstate Commerce Commission and a long list of railroad companies composing most of the rail transport in the Nation. Opposing the applications are the plaintiffs below, Students Challenging Regulatory Agency Procedures, who describe themselves as “SCRAP,” and a coalition of organizations dedicated to the protection of environmental resources. The applicants say that they intend to seek prompt review in this Court on the merits of the preliminary injunction entered below. (1) The Interstate Commerce Act, 49 U. S. C. § 1 et seq., permits increases in railroad freight rates to become effective without prior approval of the Interstate Commerce Commission. A carrier may file a proposed tariff and, after 30 days unless the Commission shortens the period, the new rate becomes effective as a carrier-made rate. 49 U. S. C. § 6 (3). The Commission may, however, choose to suspend the effectiveness of newly filed rates for as much as seven months, in order to investigate the lawfulness of the rates. 49 U. S. C. § 15 (7). At the end of seven months, the carrier-proposed rates go into effect by operation of law unless the Commission has completed its investigation and affirmatively disapproved the new rates. Ibid. Prior decisions of this Court confirm the Commission’s broad discretion in the exercise of its power of suspension; judicial review of suspension action or inaction is most severely limited, if not foreclosed. Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658 (1963); Board of Railroad Comm’rs v. Great Northern R. Co., 281 U. S. 412, 429 (1930). Against this legal background and prodded by an increasingly precarious financial condition, the railroads, on December 13, 1971, asked the Commission for leave to file on short 'notice a 2.5% surcharge on nearly all freight rates. The railroads asked that the surcharge be effective as of January 1, 1972. The surcharge was conceived as an interim emergency means of increasing railroad revenues by some $246 million per year, a sum the railroads describe as slightly less than one-sixth of the increased expenses incurred annually since the last general ratemaking proceedings. Selective increases on a more permanent basis would follow. By order dated December 21, 1971, the Commision denied the railroads’ request to make the 2.5% surcharge effective as of January 1, 1972. The Commission stated that it was aware of the carriers’ need for additional revenues, but concluded that publication of the interim surcharge on short notice “would preclude the public from effective participation” in proceedings to evaluate the surcharge. 340 I. C. C. 358, 361. The Commission did, however, rule that the railroads might refile their proposed surcharge on January 5, 1972, to be effective no earlier than February 5, 1972. On January 5, 1972, the railroads filed tariffs to put the 2.5% surcharge into effect on February 5. SCRAP and other environmental groups asked the Commission to suspend the surcharge for the statutory seven-month period. They opposed the across-the-board surcharge on the ground that the present railroad rate structure discourages the movement of “recyclable” goods in commerce and that every across-the-board increase would further increase disincentives to recycling. The environmental groups contended that added disincentives to recycling would result in the increased degradation of the natural environment by discarded, unrecycled goods and in the increased exploitation of scarce natural resources. At a minimum, SCRAP objected to the Commission’s failure to issue an “impact statement” evaluating the effect of the 2.5% surcharge on the shipment and use of recyclable materials. SCRAP contended that such a statement was required by the National Environmental Policy Act of 1969 (NEPA), 42 U. S. C. § 4321 et seg. Section 102 (2) (C) of NEPA, 83 Stat. 853, requires an impact statement “in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment. . . .” 42 U. S. C. §4332 (2)(C). The railroads took the position that interim application of the across-the-board surcharge would not “significantly affect the quality of the human environment” within the meaning of NEPA. The railroads pointed out that the 2.5% surcharge would apply equally to all products; that past experience indicated little likelihood of reduced shipments of recyclable materials as a result of the across-the-board rate revision; that the increase was small relative to the normal increase approved in general freight rate revision cases; and that the increase would be short-lived. By order dated February 1, 1972, the Commission announced that it would not suspend the 2.5% surcharge. It would, in effect, allow the surcharge to go into effect on February 5 and terminate on June 5, 1972. The order specifically stated the Commission’s view that the surcharge would “have no significant adverse effect on the movement of traffic by railway or on the quality of the human environment within the meaning of the Environmental Policy Act of 1969.” The Commission’s order of February 1 further provided that the Commission would not resume the investigation begun by its December 21 order until the railroads asked to file the promised selective 4.1% rate increase. After that tariff was filed, on April 24, the Commission suspended the 4.1% selective increase for. the statutory seven-month period until Nqvember 30, 1972. Since the original June 5 expiration date for the surcharge had assumed that selective increases would become effective by that time, the Commission’s order suspending the 4.1% selective increase eliminated the June 5 surcharge expiration date. The railroads then modified the temporary surcharge tariffs so that the 2.5% surcharge will expire on November 30, 1972, unless the 4.1% selective increase is approved prior to that time. The Commission’s study of the proposed selective rate increase is still in progress and will include an environmental impact statement. (2) SCRAP filed suit on May 12, 1972, in the United States District Court for the District of Columbia, seeking, among other relief requested, a preliminary injunction to require the Commission to prevent the railroads from further collecting the 2.5% surcharge. Other environmental groups and the railroads were allowed to intervene as a matter of right. The primary thrust of SCRAP’S suit was that the Commission’s orders, permitting and then extending the 2.5% surcharge, constituted “major Federal action significantly affecting the quality of the human environment.” The plaintiffs argued that the Commission’s action was unlawful because the Commission had not issued an environmental impact statement as required by NEPA. On July 10, 1972, the District Court issued a preliminary injunction enjoining the railroads from collecting the 2.5% surcharge on shipments originating after July 15, 1972, “insofar as that surcharge relates to goods being transported for purposes of recycling, pending further order of this court.” In its opinion, the District Court rejected the Government’s contention that SCRAP and its fellow plaintiffs lacked standing under this Court’s decision in Sierra Club v. Morton, 405 U. S. 727 (1972). The court’s opinion noted that the SCRAP plaintiffs had alleged “that its members use the forests, streams, mountains, and other resources in the .Washington [D. C.] area for camping, hiking, fishing and sightseeing, and that this use is disturbed by the adverse environmental impact caused by nonuse of recyclable goods.” 346 P. Supp. 189, 195 (1972). This allegation, said the District Court, removed this case from the ambit of Sierra Club, “where the Sierra Club failed to allege ‘that its members use Mineral King for any purpose, much less that they use it in any way that would be significantly affected by the proposed actions of the respondents.’ ” 405 U. S., at 735. Having thus dealt with our decision in Sierra Club, the District Court focused on Arrow Transportation, supra, and related cases drastically curtailing the jurisdiction of the federal courts to review the suspension power of the Interstate Commerce Commission. “The thrust of the doctrine,” reasoned the District Court, “seems to be that judicial review is available only when the rates in question are Commission-made rather than carrier-made.” 346 F. Supp., at 196. The District Court noted that the present case was not one “where the Commission merely stands silently by and allows carrier-made rates to take effect without suspension.” Ibid. The Commission had found the surcharge rates just and reasonable, and it had authored a detailed set of conditions on approval of the rates without suspension. The District Court concluded that “[a] suspension decision which effectively blackmails the carriers into submitting agency-authored rates is functionally indistinguishable from an agency order setting those rates .... [S]uch orders are, of course, judicially reviewable.” Id.., at 197. Yet the District Court found it unnecessary to decide the degree of Commission involvement in effectuating the 2.5% surcharge. The court held that “NEPA implicitly confers authority on the federal courts to enjoin any federal action taken in violation of NEPA’s procedural requirements, even if jurisdiction to review this action is otherwise lacking.” Ibid. The federal courts would have jurisdiction to review, and to enjoin, “even a mere failure to suspend rates which are wholly carrier-made so long as the review is confined to a determination as to whether the procedural requisites of NEPA have been followed.” Id., at 197 n. 11. Recognition of this jurisdiction would not undermine the Arrow decision, because “judicial insistence on compliance with the non-discretionary procedural requirements of NEPA in no way interferes with the Commission’s substantive discretion,” id., at 198, to suspend rates pending investigation and final action. Turning to the merits, the court held that the Commission’s decision not to suspend was a “major federal action” within the meaning of NEPA. An impact statement would be required whenever an action “arguably will have an adverse environmental impact.” Id., at 201. (Emphasis in original.) The Commission could not escape preparation of a statement by “so transparent a ruse” as its “single sentence” affirmation that the 2.5% surcharge would have no significant adverse environmental effect. This finding is “no more than glorified boilerplate,” id., at 201 n. 17, and the Commission has failed to prove its truth. Finally, the District Court concluded that the balance of equities in this case tipped in favor of preliminary relief. Any damage to the environment would likely be irreparable. But “the damage done the railroads by granting the injunction, while clearly nonfrivolous, is not overwhelming.” Id., at 201-202. Without opinion, the District Court declined to stay its preliminary injunction pending appeal. (3) It is likely that the questions to be presented by this appeal “are of such significance and difficulty that there is a substantial prospect that they will command four votes for review” when the full Court reconvenes for the October 1972 Term. Organized Village of Kake v. Egan, 80 S. Ct. 33, 35, 4 L. Ed. 2d 34, 37 (1959) (Brennan, J., in chambers). The decision below may present a serious question of standing to sue for the protection of environmental interests. Sierra Club. v. Morton, supra. The decision may be read as undermining our Arrow decision and in that respect may conflict with the reasoning of the Second Circuit in Port of New York Authority v. United States, 451 F. 2d 783 (CA2 1971). Most important, the decision may have the practical effect of requiring the Commission to file an impact statement whenever it exercises its statutory suspension powers. This requirement is significant because it would likely apply to each of the cluster of federal agencies presently exercising suspension powers comparable to that of the Interstate Commerce Commission. For these reasons, I would not be prepared to conclude that the Court would dispose summarily of the dispute underlying these stay applications. I must, therefore, consider whether allowing or staying the preliminary injunction is most likely to insure fair treatment for the interests of the parties and the public until the full Court acts. On the allegations of the parties some injury will ■ occur whichever course is taken. Those opposing the stay naturally point to the large weight to be given to the District Court’s evaluation or “balancing” of the equities. The harm to the railroads, and to the overall public interest in maintaining an efficient transportation network, is immediate and direct. Badly needed revenues will be lost at once, and there is little likelihood that they can be recouped. The railroads originally estimated the loss at $500,000 per month, but they have revised that estimate upwards by several times since advised by SCRAP that it attaches an unexpectedly broad interpretation to the District Court’s injunction. Unlike the District Court, I find it difficult to dismiss this certain loss of at least one and perhaps several millions of dollars simply because it is “not overwhelming” relative to the total revenues to be derived from the surcharge. Nor is it sufficient to discount the lost revenues because they might have to be disgorged if found unreasonable by the Commission at a later date. The chances of such a ruling are, again, only speculative. As a general premise for evaluation, the possibility of rebate suggests equally that shippers would not regard the surcharge as a significant additional cost. On the other hand, the District Court was convinced that harm to the environment might result from allowing the railroads to collect the 2.5% surcharge on recyclable goods pending disposition of their appeal in this Court. The District Court concluded that any such harm would likely be irreparable, since, as the court explained, “once raw materials are unnecessarily extracted from the ground and used, they cannot be returned from whence they came.” 346 F. Supp., at 201. This eventuality is premised on the following projected chain of events: (a) The railroads will collect the 2.5 percent surcharge on recyclable, as well as all other materials. (b) Because recyclable materials are already discriminated against in freight rates, the surcharge further increases rate disparities and, in any event, raises the absolute cost of transporting recyclable materials, often a high proportion of their total cost. (c) This increase in cost will result in decreased demand for recyclable materials. (d) This decrease in demand will be counterbalanced by an increased demand for new or un-recycled materials. (e) This increased demand for new materials will result in extraction of natural resources not otherwise planned. There is evidence in the record arguably supporting this forecast of the consequences of increasing freight rates on recyclable goods in common with others. Our society and its governmental instrumentalities, having been less than alert to the needs of our environment for generations, have now taken protective steps. These developments, however praiseworthy, should not lead courts to exercise equitable powers loosely or casually whenever a claim of “environmental damage” is asserted. The world must go on and new environmental legislation must be carefully meshed with more traditional patterns of federal regulation. The decisional process for judges is one of balancing and it is often a most difficult task. A District Court of three judges has considered this application for a stay pending appeal and has concluded that the stay should be denied. The criteria for granting a stay of the judgment of such a district court are stringent, at least when the necessity for a stay turns upon a refined factual evaluation of its effect. “An order of a court of three judges denying an interlocutory injunction will not be disturbed on appeal unless plainly the result of an improvident exercise of judicial discretion.” United Fuel Gas Co. v. Public Service Comm’n, 278 U. S. 322, 326 (1929); Railway Express Agency v. United States, 82 S. Ct. 466, 7 L. Ed. 2d 432 (1962) (Harlan, J., in chambers). I cannot say the District Court’s action can be equated with an abuse of discretion because it decided that there was danger to the environment outweighing the loss of income and consequent financial threat to the railroads. Notwithstanding my doubts of the correctness of the action of the three-judge District Court, as Circuit Justice, acting alone, I incline toward deferring to their collective evaluation and balancing of the equities. Reluctantly, I conclude that the applications for stay pending appeal should be denied. SCRAP’S compláint alleged that it is “an unincorporated association formed by five law students from the [George Washington University] National Law Center ... in September 1971” whose “primary purpose is to enhance the quality of the human environment for its members, and for all citizens . . . .” At the time of filing these stay applications, there was disagreement between the parties over the meaning of the term “recyclable,” as it pertains to this lawsuit. The railroads apparently understood the term “in the sense of processing of goods to obtain either a product of the same kind or a previous state of the product.” Supplemental Memo of Applicants, filed July 14, 1972, p. 2. SCRAP’s list of recyclable products, the railroads say, includes products that are “not recyclable in any sense that the railroads understand that term, but merely involve the familiar circumstances by which one usable product is derived from another.” Id., at 3. See infra, at 1216. Section 102 of NEPA provides, in pertinent part: “The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall— “(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— “(i) the environmental impact of the proposed action, “(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, “(iii) alternatives to the proposed action, “(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and “(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.” “Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes . . . A three-judge court was convened to hear the case. See 28 U. S. C. §§ 2325, 2284. E. g., Alabama Power Co. v. United States, 316 F. Supp. 337 (DC 1969), and Atlantic City Electric Co. v. United States, 306 F. Supp. 338 (SDNY 1969), both aff’d by an equally divided court, 400 U. S. 73 (1970); Electronics Industries Assn. v. United States, 310 F. Supp. 1286 (DC 1970), aff’d, 401 U. S. 967 (1971); Florida Citrus Comm’n v. United States, 144 F. Supp. 517 (ND Fla. 1956), aff’d, 352 U. S. 1021 (1957); Algoma Coal & Coke Co. v. United States, 11 F. Supp. 487 (ED Va. 1935). Among suspension provisions enacted by Congress since 49 U. S. C. § 15 (7) are 49 U. S. C. §§ 316 (g), 318 (c) (Motor Carrier Act, 1935); 49 U. S. C. §§ 907 (g), (i) (Water Carriers Act); 49 U. S. C. § 1006 (e) (Freight Forwarders Act); 47 U. S. C. § 204 (Federal Communications Act of 1934); 16 U. S. C. § 824d (e) (Federal Power Act); 15 U. S. C. § 717c (e) (Natural Gas Act); and 49 U. S. C. § 1482 (g) (Federal Aviation Act of 1958). See Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658, 666 n. 13 (1963). In evaluating the possibility of irreparable harm to the environment, the District Court did not mention the danger of increased disposal of recyclable materials. The District Court had adverted to this problem earlier in its opinion. Since the lower court did not premise its action on this possibility, it apparently concluded that any short-range harm to the environment caused by increased disposal would not be irreparable.

Ass'n of American Railroads v. South Coast Air Quality Management District

OPINION GRABER, Circuit Judge: An array of federal, state, and local laws governs the operation of railroads, including laws that regulate the effect of the railroad industry on the environment. Here, a local governmental agency enacted rules aimed at limiting the air pollution created by idling trains. Several entities within the railroad industry filed suit. After a bench trial, the district court held that federal law preempts the local rules. On de novo review, Davis v. Yageo Corp., 481 F.3d 661, 673 (9th Cir.2007); J & G Sales Ltd. v. Truscott, 473 F.3d 1043, 1047 (9th Cir.2007), we affirm. The State of California divides its geographic territory into 35 air quality management districts. One of the air quality districts located in Southern California is the South Coast Air Quality Management District (“the District”). The District performs two related functions that are relevant here. First, California law grants some regulatory authority to the District. Cal. Health & Safety Code § 40001. Provided that the District’s rules are within the scope of its regulatory authority and that the District meets all procedural and other state-law requirements, the District’s rules have the force and effect of state law. Second, California law tasks the District with drafting and proposing an air quality management plan for its region. Id. § 40460. If approved by the state agency, the California Air Resources Board (“CARB”), then the plan becomes part of the statewide air quality management plan. Id. § 40460(d). Additionally, CARB submits the statewide air quality management plan to the federal Environmental Protection Agency (“EPA”) as part of California’s proposed overall “state implementation plan” under the federal Clean Air Act. Id.; see generally Union Electric Co. v. EPA, 427 U.S. 246, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976) (discussing in detail the mechanism of using state implementation plans to meet the requirements of the federal Clean Air Act). “Once approved by EPA[,] [state implementation] plans have the force and effect of federal law.” Safe Air for Everyone v. EPA, 488 F.3d 1088, 1091 (9th Cir.2007) (original brackets and internal quotation marks omitted). In late 2005 and early 2006, the District enacted the three rules that are the subject of this case. The District had identified emissions from idling trains as a source of air pollution. The District enacted rules in an attempt to reduce that pollution. One of the rules limits the permissible amount of emissions from idling trains (through a series of alternative options for achieving that goal). The other two rules impose various reporting requirements, backed by threat of penalties, on railyard operators. In response, the Association of American Railroads, BNSF Railway Company, and Union Pacific Railroad Company (collectively, “the Railroads”) filed this action against the District and its governing board. The Railroads contend that the Interstate Commerce Commission Termination Act of 1995 (“ICCTA”), Pub.L. No. 104-88, 109 Stat. 803, a federal act that substantially deregulated the railroad industry, preempts the District’s rules. See generally DHX, Inc. v. Surface Transp. Bd., 501 F.3d 1080, 1082-83 (9th Cir.2007) (discussing ICCTA). The district court agreed and entered a permanent injunction against the District and its governing board, precluding them “from implementing or enforcing any provision of [the challenged rules].” The District timely appeals. ICCTA contains an express preemption provision over regulation of rail transportation: The jurisdiction of the [Surface Transportation] Board over— (1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and (2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State, is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law. 49 U.S.C. § 10501(b) (emphases added); see also id. § 10102(9) (defining “transportation,” in part, as “a locomotive, ear, vehicle, vessel, warehouse, wharf, pier, dock, yard, property, facility, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, by rail, regardless of ownership or an agreement concerning use” (emphases added)). We held in City of Auburn v. United States Government, 154 F.3d 1025, 1029-31 (9th Cir.1998), that Congress intended to preempt a wide range of state and local regulation of rail activity. We find further guidance on the scope of ICCTA preemption from the decisions of the Surface Transportation Board (“STB”), to which we owe Chevron deference, DUX, 501 F.3d at 1086, and from decisions of our sister circuits. If an apparent conflict exists between ICCTA and a federal law, then the courts must strive to harmonize the two laws, giving effect to both laws if possible. See In re Bos. & Me. Corp. & Town of Ayer, Mass., No. 33971, 2001 WL 458685, at *6 n. 28 (S.T.B. Apr.30, 2001) (citing Matsushita Electric Indus. Co. v. Epstein, 516 U.S. 367, 381, 116 S.Ct. 873, 134 L.Ed.2d 6 (1996); Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 133-34, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974); Unocal Corp. v. Kaabipour, 177 F.3d 755, 769 (9th Cir.1999)). If an apparent conflict exists between ICCTA and a state or local law, however, different rules apply. Generally speaking, ICCTA does not preempt state or local laws if they are laws of general applicability that do not unreasonably interfere with interstate commerce. Bos. & Me. Corp., 2001 WL 458685, at *4-6; see also In re Cities of Auburn & Kent, Wash., No. 33200, 1997 WL 362017, at *3-6 (S.T.B. July 1, 1997) (discussing ICCTA preemption of state and local laws). For instance, the STB has recognized that ICCTA likely would not preempt local laws that prohibit the dumping of harmful substances or wastes, because such a generally applicable regulation would not constitute an unreasonable burden on interstate commerce. Auburn & Kent, 1997 WL 362017, at *6; see also Fla. E. Coast Ry. Co. v. City of W. Palm Beach, 266 F.3d 1324, 1337 (11th Cir.2001) (“The statutory changes brought about by the ICCTA reflect the focus of legislative attention on removing direct economic regulation by the States, as opposed to the incidental effects that inhere in the exercise of traditionally local police powers such as zoning.”). As stated by our sister circuits, ICCTA “preempts all ‘state laws that may reasonably be said to have the effect of managing or governing rail transportation, while permitting the continued application of laws having a more remote or incidental effect on rail transportation.’ What matters is the degree to which the challenged regulation burdens rail transportation.... ” N.Y. Susquehanna & W. Ry. Corp. v. Jackson, 500 F.3d 238, 252 (3d Cir.2007) (quoting Fla. E. Coast Ry., 266 F.3d at 1331); see also Franks Inv. Co. v. Union Pac. R.R. Co., 593 F.3d 404, 410 (5th Cir.2010) (en banc) (agreeing with that “persuasive” interpretation of the scope of ICCTA preemption). Both we and our sister circuits have rejected the argument — advanced by the District here — that ICCTA preempts only economic regulation. N.Y. Susquehanna, 500 F.3d at 252; Auburn, 154 F.3d at 1031. The STB has explained that this system preserves a role for state and local agencies in the environmental regulation of railroads in at least two ways. First, to the extent that state and local agencies promulgate EPA-approved statewide plans under federal environmental laws (such as “statewide implementation plans” under the Clean Air Act), ICCTA generally does not preempt those regulations because it is possible to harmonize ICCTA with those federally recognized regulations. See, e.g., Bos. & Me. Corp., 2001 WL 458685, at *5 (“[N]othing in section 10501(b) is intended to interfere with the role of state and local agencies in implementing Federal environmental statutes, such as the Clean Air Act [and the federal clean water statutes].”). Second, to the extent that state and local agencies enforce their generally applicable regulations in a way that does not unreasonably burden railroad activity, ICCTA does not preempt such regulation, despite the fact that the regulation does not have the force and effect of federal law. Here, the District’s rules do not have the force and effect of federal law. The District alleges that it unll submit the rules to the state agency, CARB, for its approval and that, if CARB approves, CARB will submit the rules to the federal EPA as part of California’s state implementation plan. Once approved by EPA, state implementation plans have “the force and effect of federal law.” Safe Air for Everyone, 488 F.3d at 1091 (internal quotation marks omitted). The corollary to that rule is that, until approved by the EPA, state implementation plans do not have the force and effect of federal law. For that reason, it is irrelevant that the Clean Air Act reserves certain regulatory authority to the states and localities. Because the District’s rules have not become a part of California’s EPA-approved state implementation plan, they do not have the force and effect of federal law, even if they might in the future. Accordingly, there is no authority for the courts to harmonize the District’s rules with ICCTA. Because the District’s rules have the force and effect of state law, ICCTA preempts those rules unless they are rules of general applicability that do not unreasonably burden railroad activity. The District’s rules plainly cannot meet that test. The rules apply exclusively and directly to railroad activity, requiring the railroads to reduce emissions and to provide, under threat of penalties, specific reports on their emissions and inventory. Because ICCTA “preempts all state laws that may reasonably be said to have the effect of managing or governing rail transportation,” N.Y. Susquehanna, 500 F.3d at 252 (internal quotation marks omitted), ICCTA preempts the District’s rules here. AFFIRMED. . The district court also held, in the alternative, that the District's rules were not within the scope of the District’s state-law regulatory authority. The Railroads reiterate that view on appeal. We need not, and do not, decide that issue of state law. For purposes of this opinion, we assume without deciding that the rules fall within the District's regulatory authority. . For that reason, the District greatly overstates its case when it claims that a finding of preemption here would mean that all state and local regulation that happened to affect railroads, such as criminal laws and consumer protection laws, would be preempted.

Defenders of Wildlife v. North Carolina Department of Transportation

Affirmed in part, reversed in part, and remanded by published opinion. Judge WYNN wrote the opinion, in which Judge DUNCAN and Judge CHILDS joined. WYNN, Circuit Judge: At the heart of this case are the past and future of the Outer Banks, barrier islands along North Carolina’s Atlantic coast. For decades, the Herbert C. Bonner Bridge (“Bonner Bridge”) has provided highway access between mainland North Carolina and the Outer Banks’s Hatteras Island. But the effects of time threaten the structural integrity of the Bonner Bridge, while large storms and changing coastal conditions threaten the viability of the non-elevated portions of North Carolina Highway 12 (“NC 12”) south of the Bonner Bridge. The North Carolina Department of Transportation (“NCDOT”) and the Federal Highway Administration (“FHWA”) (collectively, “Defendants”) sought a long-term transportation solution to these problems and settled on a plan that essentially mirrors what currently exists: replacing the Bonner Bridge and maintaining NC 12 on Hatteras Island. Defenders of Wildlife and the National Wildlife Refuge Association (“Plaintiffs”) responded with this lawsuit. Plaintiffs claim that Defendants violated the National Environmental Policy Act (“NEPA”) and Section 4(f) of the Department of Transportation Act of 1966 by, among other things, committing to the construction of only one segment of the transportation project — namely the replacement bridge— and denying the public the full review of the entire project and its environmental impact, as NEPA requires. Plaintiffs also contend that Defendants violated Section 4(f) by, among other things, improperly rejecting alternatives that would not have used protected wildlife refuge land. The district court brought Plaintiffs’ suit to a halt by granting summary judgment in favor of Defendants. The district court held, in part, that Defendants complied with NEPA and Section 4(f) in researching, designing, and selecting their project. On appeal, we do not decide whether we agree with Defendants’ policy choices or project preferences. Rather, we must determine whether Defendants have complied with the law in reaching their decisions. This has been no easy task, given the tortured decisionmaking history of this project, the difficulty of determining exactly what Defendants intend to construct, and the extensive administrative record underlying the district court’s decision. Nevertheless, for the reasons that follow, we affirm the district court’s determination that Defendants complied with NEPA, reverse the district court’s determination that a special exception frees Defendants from complying with Section 4(f), and remand for further proceedings. I. A. Since the early 1990s, Defendants have been developing plans to replace portions of NC 12, a two-lane highway that traverses the Outer Banks. We refer to Defendants’ chosen plan — the one currently under review by this Court — simply as “the Project.” The Project involves the fifteen-mile portion of NC 12 running from the southern tip of Bodie Island, across the Oregon Inlet, to the Village of Ro-danthe, the northernmost population center on Hatteras Island. The Oregon Inlet is a relatively narrow and shallow channel of water formed in the mid-1800s by severe storms. Before 1963, when the Bonner Bridge was constructed over the Oregon Inlet, motorists relied on ferries to travel between Hatteras Island and the mainland. The two-lane Bonner Bridge is approximately 2.4 miles long and carries over ten thousand vehicles per day during the area’s busy summer tourist season. After crossing the Oregon Inlet but before reaching Rodanthe, NC 12 passes through thirteen miles of the Pea Island National Wildlife Refuge (“Refuge”) and the Cape Hatteras National Seashore (“Seashore”). These two natural areas are owned and managed by the federal government, and they are major destinations for many of the tourists who visit Hatteras Island. Although the boundaries of the Seashore and the Refuge generally overlap in the Project area, they are two distinct entities. In 1938, President Roosevelt established the Refuge pursuant to Executive Order 7864, issued under the Migratory Bird Conservation Act. The Order stated that the land was to be reserved “as a refuge and breeding ground for migratory birds and other wildlife” and that “any private lands within the area described shall become a part of the refuge hereby established upon the acquisition of title thereto or lease thereof by the United States[.]” Exec. Order No. 7864, 3 Fed.Reg. 734-35 (Apr. 12,1938). During 1937 and 1938, the United States government used condemnation proceedings to acquire the property for the Refuge directly from the previous land owners. The Refuge is managed by the United States Fish and Wildlife Service, a bureau of the Department of the Interior (“DOI”). In 1937, Congress created the Seashore as a protected environment separate and distinct from the Refuge. Act of Aug. 17, 1937, Pub.L. No. 311, 50 Stat. 669. The Seashore contains approximately 100 square miles of “primitive wilderness” on the coast, “set apart ... for the benefit and enjoyment of the people[J” Id. at 669. The United States government acquired the land for the Seashore through several deeds from the State of North Carolina. Today, the Seashore “is a publicly owned park and recreation area that is owned by the federal government and administered by the [National Park Service].” J.A. 1413. When the Seashore was created, Congress emphasized the need to protect it from development, stating that “no development of the project [Seashore] or plan for the convenience of visitors shall be undertaken which would be incompatible with the preservation of the unique flora and fauna” in the area. Act of Aug. 17, 1937, Pub.L. No. 311, § 4, 50 Stat. 669, 670. The Seashore remains “72 miles ... of open, virtually unspoiled beach and scenic drive.” J.A. 1413. During the 1940s, paved roads were built between the villages on Hatteras Island, and in 1952, “a paved road was constructed through Hatteras Island to the village of Hatteras.” J.A. 1910. Exactly when and how the public right-of-way south of the bridge was established is a matter of dispute discussed in detail below. But the record reflects that it was not until 1951 that Congress authorized DOI to grant “a permanent easement for the construction of a public road through ... the Pea Island National Wildlife Refuge” to the State of North Carolina. Act of Oct. 29, 1951, Pub.L. No. 229, 65 Stat. 662. And it was not until 1954 that DOI formally deeded the easement to North Carolina. Unfortunately, both the Bonner Bridge and the road have suffered from the effects of time, ocean overwash, and erosion. NCDOT has deemed the condition of the Bonner Bridge “poor” and given it a “sufficiency rating of two out of 100.” J.A. 1256. The condition of the surface road is no better. In its narrowest places in the Refuge, Hatteras Island is just one-quarter mile wide, and even under normal weather conditions, portions of NC 12 are “threatened by shoreline erosion and over-wash.” J.A. 1256. Despite moving NC 12 as far west as possible, and notwithstanding valiant efforts by its civil engineers and road crews, NCDOT has not been able to ensure the uninterrupted operation of the highway in recent years. In November 2009, for example, Tropical Storm Ida rendered NC 12 impassable just north of Rodanthe. Less than two years later, Hurricane Irene created two breaches that closed NC 12 from August 2011 until October 2011. And in 2012, Hurricane Sandy “tore up the roadbed, leveled the dunes, and damaged the sandbags” north of Rodanthe. DOT struggling with Highway 12 repairs at the S-cmves; more ferries added for holiday, Island Free Press, Nov. 16, 2012, http:// islandfreepress.org/2012Archives/ll.16. 2012-DOTStrugglingWithHighwayl2 RepairsAtTheScurvesMoreFerries AddedForHoliday.html. (saved as ECF opinion attachment). In light of the impact of storm events such as these, merely replacing the Bonner Bridge would not achieve the central purpose of the Project, which is to “[pjrovide a new means of access from Bodie Island to Hatteras Island for its residents, businesses, services, and tourists prior to the end of the Bonner Bridge’s service life.” J.A. 2486. Indeed, as Defendants’ own NEPA documents have put it: “Building Phase I [the bridge replacement] alone would not meet the purpose and need of the project[.j” J.A. 2493. Therefore, the Project now “also includes NC 12 between the community of Rodanthe and Oregon Inlet, a section of roadway that is at risk because of shoreline erosion.” J.A. 2486. B. In 1991, NCDOT designated several “hot spots” along NC 12: areas with a high rate of erosion and a high likelihood of overwash creating a new inlet. That same year, transportation officials began to plan for the replacement of the Bonner Bridge. They completed a feasibility study and selected as their NEPA preferred alternative the “1993 Parallel Bridge Corridor.” J.A. 785. This alternative consisted only of a replacement bridge. In 1993, Defendants completed a Draft Environmental Impact Study and a Section 4(f) analysis for this bridge-only preferred alternative. However, nine years later, in 2002, officials decided “that the 1993 Parallel Bridge Corridor was no longer a viable Bonner Bridge replacement alternative,” J.A. 787, due in large part to the ongoing beach erosion and “increased problems with ocean overwash along NC 12 south of Bonner Bridge” that often rendered the highway impassable. J.A. 786. Defendants perceived the need to “lengthen the project limits.... [T]he prevailing logic being that if those hot spots are impassible, [sic] what good is the bridge?” J.A. 1787. Accordingly, Defendants began assessing different alternatives that addressed both the bridge and certain segments of NC 12, preparing a Supplemental Draft Environmental Impact Statement, and performing a new Section 4(f) Evaluation. These assessments were consolidated into one document that was signed and released to the public on September 12, 2005 (the “2005 Supplemental Draft Environmental Impact Statements© Evaluation”). The 2005 Supplemental Draft Environmental Impact Statements© Evaluation analyzed five alternatives that were located within two different geographic corridors. The first corridor was described as the “Pamlico Sound Bridge Corridor,” and the two alternatives within this corridor involved an 18-mile-long bridge that extended from Bodie Island in the north to Rodanthe in the south. Both of these alternatives, titled “Pamlico Sound Bridge Corridor With Curved Rodanthe Terminus” and “Pamlico Sound Bridge Corridor With Intersection Rodanthe Terminus,” J.A. 781, avoided almost all of the Refuge and the Seashore by making a large sweeping curve approximately five miles west of Hatteras Island into Pamlico Sound before rejoining existing NC 12 in Rodanthe. The remaining three alternatives were located within the “Parallel Bridge Corridor.” J.A. 781-82. These alternatives all consisted of a replacement bridge that would span the Oregon Inlet parallel to the existing Bonner Bridge, coupled with a strategy for keeping “NC 12 open from the community of Rodanthe to the Oregon Inlet bridge’s southern terminus[.]” J.A. 783. These alternatives differed in their respective strategies for keeping NC 12 open on Hatteras Island. The first alternative — titled “The Nourishment Alternative” — involved “beach nourishment plus dune enhancement ... to maintain a minimally adequate beach and dune system.” J.A. 783. The protection afforded by the beach and dunes— which would need to be replenished with dredged sand every few years — would ostensibly allow NC 12 to remain in place. The second alternative — titled “Road North/Bridge South” — involved placing NC 12 “on a bridge west of Hatteras Island beginning at a new intersection in Rodanthe and continuing to a point approximately 2 miles ... north of the Refuge’s southern boundary where the project would meet existing NC 12.” J.A. 783. After that point, NC 12 would then remain unchanged for 2.6 miles [and] ... would be relocated to a point 230 feet ... west of the forecast worst-case 2060 shoreline. This relocation would continue 7.1 miles ... north until the relocated NC 12 would meet the Oregon Inlet bridge. Three 10-foot-high dunes, totaling 2,100 feet ... would be built when needed as the shoreline erodes towards the relocated road. J.A. 783. The final alternative within the Parallel Bridge Corridor was called the “All Bridge Alternative,” in which “NC 12 would be constructed on a bridge to the west of the existing road.” J.A. 783. Notwithstanding its name, the All Bridge Alternative would also include two surface road segments — one near the Oregon Inlet and another “just north of the Refuge’s ponds where access from NC 12 to the Refuge would be provided.” J.A. 783. The 2005 Supplemental Draft Environmental Impact Statement/4(f) Evaluation explained that although all of the Parallel Bridge Corridor alternatives were described and addressed “as three separate alternatives, their components could be mixed and matched geographically along the length of NC 12 to create other variations.” J.A. 783. The 2005 Supplemental Draft Environmental Impact Statement/4(f) Evaluation did not select a preferred alternative, and Defendants never issued a Final Environmental Impact Statement. Instead, Defendants issued another supplement in 2007. They titled this document the “Supplement to the 2005 Supplemental Draft Environmental Impact Statement and Draft Section 4(f) Evaluation” (the “2007 Supplement”). The 2007 Supplement explains that it was issued to address the “characteristics and potential direct, indirect, and cumulative impacts of two additional detailed study alternatives.” J.A. 1091. These two new alternatives were titled: (1) “Parallel Bridge Corridor With Phased Approach/Rodanthe Bridge;” and (2) “Parallel Bridge Corridor With Phased Approach/Rodanthe Nourishment.” J.A. 1096. The 2007 Supplement also explicitly stated that “[u]nless otherwise noted, information presented in the 2005 [Supplemental Draft Environmental Impact Statement] has not changed and is not reproduced in this Supplement.” J.A. 1093. The 2007 Supplement’s two new alternatives were variations on a “Phased Approach” to the Project. Both alternatives included “an Oregon Inlet bridge and elevating portions of NC 12 through the Refuge and northern Rodanthe on new bridges within the existing NC 12 easement.” J.A. 1097. Both alternatives were proposed to be built in four phases, with the construction of the new Oregon Inlet bridge as the first phase. The remaining phases would be constructed “as necessitated by shoreline erosion.” J.A. 1097. The only difference between the two new “Phased Approach” alternatives was the manner in which NC 12 would be protected from erosion. Under the “Phased Approach/Rodanthe Bridge Alternative, the [new] bridge in the existing NC 12 easement would begin in Rodanthe ... and extend north to Oregon Inlet except for the 2.1 mile ... length of NC 12 in the southern half of the Refuge that would not be threatened by erosion prior to 2060.” J.A. 1097. “The Phased Approach/Ro-danthe Nourishment Alternative would be similar except the southern end of the NC 12 bridge would begin 0.3 mile ... south of the Refuge/Rodanthe border. Beach nourishment would be used to protect NC 12 in Rodanthe.” J.A. 1097. And like the 2005 Supplemental Draft Environmental Impact Statement, the 2007 Supplement explained that all of the Parallel Bridge Alternatives “could be mixed and matched geographically along the length of NC 12 to create other variations.” J.A. 1097. To review, then, the 2005 Supplemental Draft Environmental Impact Statement and its 2007 Supplement analyzed in detail seven alternatives: (1) Pamlico Sound Bridge Corridor With Curved Rodanthe Terminus; (2) Pamlico Sound Bridge Corridor With Intersection Rodanthe Terminus; (3) Parallel Bridge Corridor With Nourishment; (4) Parallel Bridge Corridor With Road North/Bridge South; (5) Parallel Bridge Corridor With All Bridge; (6) Parallel Bridge Corridor With Phased Approach/Rodanthe Bridge; and (7) Parallel Bridge Corridor With Phased Approach/Rodanthe Nourishment. In 2008, Defendants issued a Final Environmental Impact Statement (“2008 Final Environmental Impact Statement”) that analyzed the seven alternatives covered by the 2005 and 2007 documents. The Final Environmental Impact Statement stated that the preferred alternative was the Parallel Bridge Corridor With Phased Approach/Rodanthe Bridge. J.A. 1229. The Final Environmental Impact Statement clearly explained that the preferred alternative and the other Phased Approach alternative that was added in the 2007 Supplement — the Parallel Bridge Corridor With Phased Approach/Rodanthe Nourishment — would remain “within the existing NC 12 easement.” J.A. 1230. The Final Environmental Impact Statement noted that Defendants chose the preferred alternative based on several factors, including: “the ability of the alternatives considered to meet the project’s purpose and need; environmental consequences; opportunities available to mitigate impacts; cost; public and agency comment [on the 2005 Supplemental Draft Environmental Impact Statement/4(f) Evaluation and the 2007 Supplement]; and other findings presented in this [Final Environmental Impact Statement].” J.A. 1231. But at the end of the comment period, Defendants did not issue a Record of Decision. Instead, sometime between late 2008 and early 2009, Defendants decided “to revisit” their preferred alternative “because of consideration and evaluation given to comments received on the [Final Environmental Impact Statement] and the Section 4(f) Evaluation included in the [Final Environmental Impact Statement].” J.A. 1812. Defendants also claimed to have “obtained additional information, which also contributed to the re-evaluation” of the preferred alternative. J.A. 1812. This “additional information” consisted of what Defendants characterized as “substantial evidence that a public vehicular thoroughfare existed across the length of the project area before the Refuge and Seashore were established.” J.A. 1814. Defendants explained that “[t]his new information changes [the] FHWA analysis required by Section 4(f).” J.A. 1814. To support their assertions regarding the history of the NC 12 right-of-way; Defendants created a document titled “NC 12 RighNof-Way Timeline.” J.A. 1834-48. In the spring of 2009, Defendants distributed this document at a meeting with representatives of state and federal agencies involved in the Project. The meeting agenda for that day indicates that Defendants planned to designate the Road North/Bridge South Alternative as the new Preferred Alternative.- J.A. 1811. . During that meeting, a representative from the Environmental Protection Agency (“EPA”) put forth the idea of first building the replacement for the Bonner Bridge and then examining the rest of the Project “in more detail when future conditions are more known.” J.A. 1886. The EPA representative characterized this idea as “adaptive management[.]” J.A. 1886. Not everyone at the meeting was completely on board with this idea, however. Specifically, Pete Benjamin, a representative with the U.S. Fish and Wildlife Service stated that “he was trying to decide if adaptive management was appropriate for this project” but had reservations regarding “whether or not [the agencies] could identify in the future a solution through the Refuge that is legal from the perspective of all of the agencies involved.” J.A. 1887. He went on to say that the agencies “need[ed] more than just the ‘hope’ [of finding] an appropriate future solution.” J.A. 1887. After the meeting, Mr. Benjamin sent NCDOT a letter explaining that the information that Defendants presented to the meeting participants “contained many incorrect statements and findings that have the potential to improperly influence decision-making as the process moves forward.” J.A. 1892. He took issue with Defendants’ assessments regarding the environmental impact on the Refuge, and he expressed the belief that “NCDOT cannot demonstrate that it has a right to move its easement for NC-12 to any other location within the Refuge.” J.A. 1896. Notwithstanding such reservations, Defendants began to pursue yet another new multi-phase alternative — one that differed from the previously studied alternatives. In October 2009, FHWA released a “Revised Final Section 4(f) Evaluation” (“2009 Section 4(f) Evaluation”). This document provided the public with its first notice of “the new Preferred Alternative — the ‘Parallel Bridge Corridor with NC 12 Transportation Management Plan.’ ” J.A. 1904. Defendants explained it as follows: This alternative would replace the current [Bonner Bridge] with a new bridge located to the west of the existing bridge (Phase I). The replacement bridge location in the Refuge is limited to the area necessary to safely construct and tie-in the new bridge to NC 12. Under the Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative, later phases of actions to manage NC 12 through 2060 would be decided based on actual conditions existing on Hatteras Island at the point in time that additional action becomes necessary. These later phases could consist of, but would not be limited to, one or more components of any of the alternatives already studied as part of the environmental review processf] ” J.A. 1904-05 (emphasis added). FHWA also explained that “[b]ased on ... newly obtained information,” its determinations regarding the applicability of Section 4(f) had changed.' J.A. 1907. Specifically, FHWA stated that Section 4(f) applied only to the Pea Island National Wildlife Refuge “as a historic property[,]” rather, than “as a refuge.” J.A. 1913-14. FHWA based this assertion on evidence that it claimed “demonstrate^] that the Federal and State governments preserved the Hatteras Island area with an understanding that vehicular passage would be accommodated, and that the vehicular passage has not been fixed to one location ” J.A. 1913. FHWA went on to state that “the history indicates that the Refuge, transportation facility and existing Bonner Bridge were concurrently and jointly planned and developed by the Federal and State governments working together to preserve the land for wildlife while maintaining a means for safe and efficient vehicular transportation.” J.A. 1913. The 2009 Section 4(f) Evaluation explained that “it is. FHWA’s revised determination that Section 4(f) is not applicable to the Refuge (as a refuge), as the impacts resulting from relocating NC 12 from its current alignment through the Refuge would not be considered a use as defined in 23 C.F.R. § 774.17.” J.A. 1913. FHWA concluded that it “is not required to make a specific Section 4(f) approval for use prior to approving the project.” J.A. 1913. On May 7, 2010, Defendants issued an Environmental Assessment that “iden-tifie[d] and assesse[d] changes that have occurred since the approval of the Final Environmental Impact Statement/Final Section 4(f) Evaluation on September 17, 2008.” J.A. 2151. The Environmental Assessment broadly described the Project as “the construction of a bridge to replace the Herbert C. Bonner Bridge in Dare County, the demolition and removal of Bonner Bridge, and improvements to NC 12 between the community of Rodanthe and Oregon Inlet.” J.A. 2151. The Environmental Assessment was intended to provide the public with notice under NEPA of “the new Preferred Alternative, eventually titled the Parallel Bridge Corridor with NC 12 Transportation Management Plant.]" J.A. 2178. In approximately seven short pages of text and three maps, Defendants explained that the new preferred alternative would consist of multiple phases. The first phase would be the construction of a new Oregon Inlet bridge “as soon as possible,” J.A. 2177, and in a slightly different location from that which had previously been evaluated. Defendants clarify in their appellate brief that “the replacement bridge would use the existing Highway 12 easement.” Appellees’ Br. at 37 (citing J.A. 2493). The amorphously titled “Later Phases”— also sometimes referred to as the “NC 12 Transportation Management Plan”'— “would be finalized through commitments made in the Record of Decision.” J.A. 2182-83. The Environmental Assessment went on to' explain that, with respect to the “Later Phases,” the “Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative (Preferred) does not specify a particular action at this time on Hatteras Island beyond the limits of Phase I because of the inherent uncertainty in predicting future conditions within the dynamic coastal barrier island environment.” J.A. 2182. Rather, “the alternative addresses the study and selection of future actions on Hatteras Island ... through a comprehensive NC 12 Transportation Management Plan.” J.A. 2182. The Environmental Assessment does not contain a “transportation management plan” as that term is typically understood. Rather, it contains approximately four pages that describe how the “plan” consists of “a comprehensive coastal monitoring program,” J.A. 2183, “[e]nvironmental [r]eview for [f]uture [p]hases,” J.A. 2185, and the “[s]election of [f]uture [p]hases for [ijmplementation,” J.A. 2185. Defendants’ “plan” is simply to decide what to do with the remainder of NC 12 on Hatteras Island at some point in the future. Defendants claimed that “[b]y actively monitoring the conditions and delaying de-cisionmaking, the environmental impacts can be better quantified, minimized, and mitigated.” J.A. 2182. Defendants also stated that “[t]his process is somewhat analogous to a tiered NEPA study, in that the entire end-to-end impacts have been studied but the detailed selection of a portion of the action is being delayed.” J.A. 2182. On December 20, 2010, FHWA issued a Record of Decision that authorized NCDOT to construct, and FHWA to substantially fund, the Project described in the revised Section 4(f) Evaluation and the Environmental Assessment. The Record of Decision explains that the Project “is a mix and match of the Parallel Bridge Corridor alternatives assessed in the 2008 [Final Environmental Impact Statement].” J.A. 2488. “It calls for Phase I (Oregon Inlet bridge) to be built as soon as possible, followed by construction of later phases whose details would be determined, reevaluated, and documented through interagency collaboration as project area conditions warrant.” J.A. 2488. The Record of Decision also contains a section that responds to comments made by government agencies regarding the new preferred alternative. The Army Corps of Engineers submitted a comment noting that the Final Environmental Impact Statement (on which the Environmental Assessment was based) “would confine future NC 12 maintenance in the Refuge, including storm-related maintenance, to the existing NC 12 easement, after the issuance of the Record of Decision for the project.” J.A. 2586-87. Defendants responded as follows: The proposal in Section 4.6.8.6 of the Final Environmental Impact Statement to confine future NC 12 maintenance activities within the existing easement applied only to the Phased Approach Alternatives, which were developed with the requirement that all work within the Refuge must be confined within the existing easement. That requirement does not exist with the NC 12 Transportation Management Plan. J.A. 2587 (emphasis added). Given the foregoing, this Court understands the Project as follows: Construction of a new two-lane bridge that runs parallel to the existing Bonner Bridge and uses the existing NC 12 easement, followed by “the study and selection of future actions on Hatteras Island beyond the limits of Phase I through a comprehensive NC 12 Transportation Management Plan[,]” J.A. 2497, with the purpose of said Plan being to “guide the implementation of future phases of the project through 2060,” J.A. 2497, and with future phases not necessarily confined to the existing NC 12 easement, J.A. 2587. C. Plaintiffs sued on July 1, 2011, and the parties filed cross-motions for summary judgment in July and September of 2012. On September 16, 2013, the district court granted Defendants’ motion and denied Plaintiffs’ motion. Defenders of Wildlife v. N.C. Dep’t of Transp., 971 F.Supp.2d 510, 513 (E.D.N.C.2013). 1. Regarding Plaintiffs’ NEPA claim, the district court explained that Defendants did not violate NEPA by issuing an “EIS [that] only covers the Bonner Bridge replacement, with future studies planned for later construction phases along the NC 12 corridor.” Id. at 526. It also noted that the bridge project can stand alone “due to concerns as to changing conditions and weather events impacting the shoreline on Hatteras Island.” Id. at 524. To reach this determination, the district court analyzed whether the Project violated FHWA’s NEPA regulations pertaining to segmentation, which require that a project have logical termini and independent utility and not restrict the. selection of future phases. The district court explained that “the factual circumstances surrounding this case are unique[,]” id. at 525, and that “the northern end of Hatteras Island constitutes a logical terminus for the Project” due to the constantly changing conditions on Hatteras Island, id. at 524. The district court also stated that the Project “is a reasonable expenditure independent of additional transportation improvements,” and that the fact “that NC 12 requires maintenance ... does not ruin the substantial utility of replacing a bridge that is reaching the end of its service life.” Id. at 525-26. Finally, the district court determined that “no particular action is automatically triggered in later phases” by the construction of the bridge alone. Id. at 526 (internal quotation marks omitted). 2. The district court also held that Defendants did not violate Section 4(f). First, the district court determined that “FHWA properly relied on the joint planning exception with respect to the Refuge.” Id. at 534. The district court concluded that the “[f]ederal and state governments preserved the Hatteras Island area with an understanding that vehicular passage would be accommodated, and that the vehicular passage has not been fixed to one location[.]” Id. In reaching this determination, the district court relied on the following evidence: (1) the depiction of an unimproved road through the Refuge on a 1942 Coast Guard map; (2) a 1939 application for a ferry permit that describes ferry service beginning in 1926; (3) photos of ferries carrying cars; (4) North Carolina highway maps from 1944 and 1949; (5) 1938 reports from the manager of the Refuge that refer to a “public road;” (6) a 1951 U.S. Senate debate in which North Carolina Senator Willis Smith “asserted the State’s ownership of the road;” (7) Public Law 229, which, in 1951, authorized DOI to grant an easement to North Carolina for a road; (8) a 1954 quitclaim deed granted by North Carolina to the federal government covering any interest in the land, with the exception of “a previously granted 100-foot easement;” and (9) a 100-foot easement granted by DOI to North Carolina in 1954 for construction and maintenance of NC 12. Id. 533-34. The district court also briefly addressed the substantive requirements of Section 4(f) and concluded that FHWA had complied with them. Specifically, the district court determined that no prudent alternative existed, that the “[selected] alternative will cause the least overall harm,” and that “FHWA ... conducted all possible planning to minimize harm.” Id. at 535. This appeal followed. Plaintiffs argue that the district court erred in its determinations regarding: (1) whether Defendants engaged in improper segmentation in violation of NEPA; (2) the applicability of the joint planning exception to Section 4(f); and (3) whether Defendants complied with the substantive requirements of Section 4(f). We turn now to a description of the law governing these issues. II. A. At the outset, we must correct a major error on which the district court’s analysis was based: The district erroneously defined the scope of the Project when it noted that “the current [Environmental Impact Statement] only covers the Bonner Bridge replacement,.... ” Id. at 526. This statement contradicts the entire record, and in making it, the district court invented a project that Defendants’ NEPA documents under review expressly disown. Since at least 2002, Defendants have made plain that the purpose of the Project is to “[p]rovide a new means of access from Bodie Island to Hatteras Island for its residents, businesses, services, and tourists prior to the end of the Bonner Bridge’s service life.” J.A. 2486. This purpose cannot be fulfilled by the bridge alone because the entire northern part of Hatteras Island is occupied by the Seashore and the Refuge. The bridge is essentially worthless without a means of conveying motorists from its southern terminus to the Village of Rodanthe, which is the northernmost point where the residents, businesses, and services on Hatteras Island are located. See, e.g., J.A. 2493 (stating in the Record of Decision that “[bjuilding Phase I alone would not meet the purpose and need of the project”). As Defendants stated in their Record of Decision, the Project “is a mix and match of the Parallel Bridge Corridor Alternatives assessed in the 2008 [Final Environmental Impact Statement].” J.A. 2488. According to the Record of Decision, the Project “calls for Phase I (Oregon Inlet bridge) to be built as soon as possible, followed by construction of later phases whose details would be determined, reevaluated, and documented through inter-agency collaboration as project area conditions warrant.” J.A. 2488. It is true that the Project’s only definite component at this time is the construction of a “Parallel Bridge” across Oregon Inlet within the existing easement. Beyond that, the “plan” is to “delay[] decision-making,” ostensibly “because of the inherent uncertainty in predicting future conditions within the dynamic coastal barrier island environment.” J.A. 2497. Nonetheless, Defendants have clearly committed themselves to doing something between the southern terminus of the bridge and Rodanthe—they simply have not (at least publicly) chosen what. One way to resolve this case would be to remand all of it to the district court with instructions to fully evaluate the actual Project that Defendants proposed. However, “[a]n appellee may defend, and this Court may affirm, the district court’s judgment on any basis supported by the record.” Sloas v. CSX Transp., Inc., 616 F.3d 380, 388 n. 5 (4th Cir.2010). Because both parties have adequately briefed and argued the issues using the properly defined Project, we proceed to our analyses of the NEPA and Section 4(f) arguments in this case. B. Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). We review a grant of summary judgment de novo, Nat’l Audubon Soc’y v. Dep’t of the Navy, 422 F.3d 174, 185 (4th Cir.2005), taking the facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Because the district court’s grant of summary judgment disposed of cross-motions for summary judgment, “we consider each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.” Bacon v. City of Richmond, Va., 475 F.3d 633, 638 (4th Cir.2007) (internal quotation marks omitted). In considering each motion, we “resolve all factual disputes and any competing, rational inferences in the light most favorable to the party opposing that motion.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.2003) (internal quotation marks omitted). The Administrative Procedure Act (“APA”) governs our review of agency actions under NEPA and Section 4(f). See N.C. Wildlife Fed’n v. N.C. Dep’t of Transp., 677 F.3d 596, 601 (4th Cir.2012); Hickory Neighborhood Def. League v. Skinner, 893 F.2d 58, 61 (4th Cir.1990). A reviewing court may set aside an agency action that was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]” 5 U.S.C. § 706(2)(A); see Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 763, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004); Marsh v. Or. Natural Res. Council, 490 U.S. 360, 375-76, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). “This inquiry must ‘be searching and careful,’ but ‘the ultimate standard of review is a narrow one.’ ” Marsh, 490 U.S. at 378, 109 S.Ct. 1851 (quoting Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). Our review is de novo, “without deference to the district court’s resolution of the issue.” Friends of Back Bay v. Army Corps of Eng’rs, 681 F.3d 581, 587 (4th Cir.2012). III. A. The National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370Í, “establishes a ‘national policy [to] encourage productive and enjoyable harmony between man and his environment,’ and was intended to reduce or eliminate environmental damage and to promote ‘the understanding of the ecological systems and natural resources important to’ the United States.” Pub. Citizen, 541 U.S. at 756, 124 S.Ct. 2204 (2004) (quoting 42 U.S.C. § 4321). All actions undertaken by a federal agency “with effects that may be major and which are potentially subject to Federal control and responsibility^]” and all “projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies” must comply with both NEPA and the regulations promulgated by the Council on Environmental Quality. 40 C.F.R. § 1508.18. NEPA mandates “a set of ‘action-forcing’ procedures that require that agencies take a ‘hard look’ at environmental consequences, ... and that provide for broad dissemination of relevant environmental information.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (internal quotation marks and citation omitted). Because NEPA “does not mandate particular results, but simply prescribes the necessary process[,]” it “prohibits uninformed—rather than unwise— agency action.” Id. at 350-51, 109 S.Ct. 1835. “[T]he broad dissemination of information mandated by NEPA permits the public and other government agencies to react to the effects of a proposed action at a meaningful time.” Marsh, 490 U.S. at 371, 109 S.Ct. 1851. Under NEPA, for every “major Federal aetion[] significantly affecting the quality of the human environment,” the agency involved must prepare “a detailed statement” that discloses and evaluates, among other things, “the environmental impact of the proposed action,” unavoidable adverse effects of the proposed action, and “alternatives to the proposed action.” 42 U.S.C. § 4332(2)(C). Every Environmental Impact Statement must “provide full and fair discussion of significant environmental impacts” arising from the reasonable alternatives. 40 C.F.R. § 1502.1. An agency’s comparative evaluation of alternatives to the proposed action “is the heart of the environmental impact statement” because it “sharply defin[es] the issues and provides] a clear basis for choice among options by the decisionmaker and the public.” 40 C.F.R. § 1502.14. Therefore, agencies must “[Vigorously explore and objectively evaluate all reasonable alternatives[.]” Id. § 1502.14(a). The assessment of the environmental impacts is the “scientific and analytic basis for the comparison[ ]” of alternatives. 40 C.F.R. § 1502.16. “[A]gencies must measure the indirect and cumulative environmental effects of proposed actions.... Conclusory statements that the indirect and cumulative effects will be minimal or that such effects are inevitable are insufficient under NEPA.” N.C. Wildlife Fed’n, 677 F.3d at 602 (citation omitted). “NEPA does not require agencies to adopt any particular internal decision-making structure.” Balt. Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 100, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). But NEPA does require agencies to follow a particular decisionmaking process. For example, Environmental Assessments and Environmental Impact Statements must be completed “before decisions are made and before actions are taken.” 40 C.F.R. § 1500.1(b); see also id. § 1500.1(c) (stating that “the NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences”). Also, NEPA imposes a continuing obligation on agencies to consider the environmental impacts of a proposed action, even after a Final Environmental Impact Statement has been issued. An agency-must issue a supplemental Environmental Impact Statement if the agency “makes substantial changes in the proposed action that are relevant to environmental concerns” or if “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(l)(i), (ii). This case implicates the regulations pertaining to illegal segmentation of the analysis of environmental impacts as well as those pertaining to the permissible “tier-ing” of the analysis of impacts. We discuss each in turn below. B. Agencies may not engage “in segmentation, which involves ‘an attempt to circumvent NEPA by breaking up one project into smaller projects and not studying the overall impacts of the single overall project.’” Webster v. U.S. Dep’t of Agric., 685 F.3d 411, 426 (4th Cir.2012) (quoting Coal. on W. Valley Nuclear Wastes v. Chu, 592 F.3d 306, 311 (2d Cir.2009)). Specifically, “[p]roposals or parts of proposals which are related to each other closely enough to be, in effect, a single course of action shall be evaluated in a single impact statement.” 40 C.F.R. § 1502.4(a). Proposed projects are considered “connected if they: (i) Automatically trigger other actions which may require environmental impact statements^] (ii) Cannot or will not proceed unless other actions are taken previously or simulta-neouslyt; or] (iii) Are interdependent parts of a larger action and depend on the larger action for their justification.” Id. § 1508.25(a)(1). Agencies must also assess “[e]umulative actions,” and “[similar actions” with “common timing or geography” in the same impact statement. Id. § 1508.25(a)(2)-(3). FHWA’s anti-segmentation regulations are designed to “ensure meaningful evaluation of alternatives and to avoid commitments to transportation improvements before they are fully evaluated[.]” 23 C.F.R. § 771.111(f). Each action evaluated must: (1) Connect logical termini and be of sufficient length to address environmental matters on a broad scope; (2) Have independent utility or independent significance, i.e., be usable and be a reasonable expenditure even if no additional transportation improvements in the area are made; and (3) Not restrict consideration of alternatives for other reasonably foreseeable transportation improvements. Id. § 771.111(f)(l)-(3). To evaluate whether a project connects logical termini, courts look to the purpose and need of the project as stated in the Environmental Impact Statement. See Indian Lookout Alliance v. Volpe, 484 F.2d 11, 18 (8th Cir.1973) (“If the major objective of a proposal is to connect two cities by expressway, then these two termini should determine the proper scope of the [Environmental Impact Statement].”). Additionally, logical termini are often obvious because of their connection to “crossroads, population centers, major traffic generators, or similar highway control elements.” Conservation Law Found. v. Fed. Highway Admin., 24 F.3d 1465, 1472 (1st Cir.1994). The independent utility test also determines whether related actions or projects must be evaluated in a single Environmental Impact Statement. Webster, 685 F.3d at 426. Courts inquire into “whether each project would have taken place in the other’s absence.... If so, [the projects] have independent utility and are not considered connected actions.” Id. When determining whether an action has independent utility, courts consider the benefits and uses that will occur as a result of that action, even if no other construction is done in the area. For example, in James River v. Richmond Metropolitan Authority, this Court upheld a determination that Richmond’s Downtown Expressway and 1-195 had independent utility because each segment independently allowed traffic to access parts of the downtown area and other major highways more easily. 359 P.Supp. 611, 636 (E.D.Va.1973), aff'd per curiam, 481 F.2d 1280 (4th Cir.1973). See also Save Barton Creek Ass’n v. Fed. Highway Admin., 950 F.2d 1129, 1141-42 (5th Cir.1992) (holding that one portion of a highway loop had independent utility because, standing alone, the project alleviated traffic, improved access to residential, commercial, and recreational areas, and connected to major roadways). C. By contrast, a tiered or multiphase NEPA analysis may be appropriate for agencies that are “contemplating large or complex projects.” Shenandoah Valley Network v. Capka, 669 F.3d 194, 196 (4th Cir.2012). In fact, “[a]gencies are encouraged to tier their environmental impact statements to eliminate repetitive discussions of the same issues and to focus on the actual issues ripe for decision at each level of environmental review....” 40 C.F.R. § 1502.20. A properly tiered analysis consists of “a broad environmental impact statement” followed by “a subsequent statement or environmental assessment ... on an action included within ” the program or policy contemplated in the broad statement. 40 C.F.R. § 1502.20 (emphasis added). The subsequent statement “shall concentrate on the issues specific to the subsequent action[,]” and it “need only summarize the issues discussed in the broader statement[.]” Id. Tiering may never be used to “avoid consideration of reasonable alternatives by making a binding site-specific decision at the programmatic stage without analysis, deferring consideration of site-specific issues to a [subsequent Supplemental Environmental Impact Statement].” 'Ilio’ulaokalani Coal. v. Rumsfeld, 464 F.3d 1083, 1101 (9th Cir.2006). And the dividing line between illegal segmentation and permissible tiering is an agency’s proposal “to make an irreversible and irretrievable commitment of the availability of resources to a project at a particular site.” California v. Block, 690 F.2d 753, 761 (9th Cir.1982) (internal quotation marks omitted); see also 42 U.S.C. § 4332(2)(C)(v). D. When reviewing a NEPA decision, a court “must not reduce itself to a ‘rubber-stamp’ of agency action.” N.C. Wildlife Fed’n, 677 F.3d at 601 (quoting Fed. Mar. Comm’n v. Seatrain Lines, Inc., 411 U.S. 726, 746, 93 S.Ct. 1773, 36 L.Ed.2d 620 (1973)). Rather, we must ensure that the agency has “ ‘examine[d] the relevant data and articulatefd] a satisfactory explanation for its action.’ ” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). An agency’s decision is arbitrary and capricious if the agency 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, 103 S.Ct. 2856. We may not substitute our “judgment for that of the agency.” Fox Television Stations, 556 U.S. at 513, 129 S.Ct. 1800 (internal quotation marks omitted). “[O]ur task is to ensure that [the agency] took a hard look at the environmental consequences of the proposed action.” Webster, 685 F.3d at 421 (internal quotation marks omitted). Consequently, “we ‘may not flyspeck [the] agency’s environmental analysis, looking for any deficiency, no matter how minor.’ ” Id. (quoting Nat’l Audubon Soc’y, 422 F.3d at 186 (alteration in original) (internal quotation marks omitted)). Nor may we seize on any “trivial inadequacy in an [Environmental Impact Statement] as a reason to reject an agency decision[.]” Nat’l Audubon Soc’y, 422 F.3d at 186. Our “totality of the circumstances approach means that [we] must view deficiencies in one portion of an [Environmental Impact Statement] in light of how they affect the entire analysis.” Id. E. Plaintiffs argue that “Defendants violated the basic principles of NEPA and engaged in illegal ‘segmentation’ by issuing a [Record of Decision] that disclosed only one initial segment of the Selected Alternative—a segment that will commit them to significant future construction of a road and bridges through a National Wildlife Refuge—while failing to disclose any specific plans for that construction.” Appellants’ Br. at 20. Defendants counter that “[n]othing in NEPA requires an agency to authorize all phases of a proposed action evaluated in an [Environmental Impact Statement] at the time it issues a [Record of Decision].” Appellees’ Br. at 29. They maintain that “the agencies have fully analyzed the entire project in an [Environmental Impact Statement] and [Environmental Assessment,]” by conducting “a full end-to-end study of alternatives and associated impacts for the entire length of the project, from the northern limit on Bodie Island to the southern limit in the [V]illage of Ro-danthe” and have thus not engaged in segmentation. Appellees’ Br. at 29-30. Illegal segmentation is distinct from approving only a portion of a project that has been fully and adequately studied. We agree with the Eleventh Circuit that NEPA does not require an agency to “authorize all stages of a project in one [Record of Decision].” Defenders of Wildlife v. U.S. Dep’t of the Navy, 733 F.3d 1106, 1116 (11th Cir.2013). Nothing in NEPA prohibits Defendants from authorizing only one part of the Project so long as doing so does not commit them to a course of action that has not been fully analyzed. To be sure, Defendants’ Record of Decision does commit resources to the Project, and we perceive no reason why Defendants cannot analyze the entire Project “in a single impact statement.” 40 C.F.R. § 1502.4(a). But they are not required to approve the entire Project in a single Record of Decision so long as their NEPA documents adequately analyze and disclose the impacts of the entire Project—including those portions that have yet to be approved. The parties agree that the studied alternatives are feasible, i.e., that, as a matter of sound engineering judgment, they can be built. And the record shows that Defendants have adequately analyzed the impacts associated with the five Parallel Bridge Corridor alternatives that could be implemented to complete the Project: (1) Parallel Bridge Corridor With Nourishment; (2) Parallel Bridge Corridor With Road North/Bridge South; (3) Parallel Bridge Corridor With All Bridge; (4) Parallel Bridge Corridor With Phased Approach/Rodanthe Bridge (Preferred); and (5) Parallel Bridge Corridor With Phased Approach/Rodanthe Nourishment. Indeed, at oral arguments, even Plaintiffs acknowledged that if Defendants had issued a Record of Decision that committed to any one'—or any combination—of those alternatives, that action likely would have complied with NEPA’s procedural requirements. Accordingly, at least with respect to the previously studied alternatives, Defendants have neither attempted to “circumvent[ ] NEPA” nor refused to study “the overall impacts of the single overall project.” Webster, 685 F.3d at 426 (internal quotation- marks omitted). Rather, they have conducted a full, site-specific analysis. Thus, their decision to implement the Project one phase at a time does not violate NEPA. Plaintiffs press that the Record of Decision seems to authorize the construction of future phases that have not yet been analyzed and disclosed to the public. And certain aspects of the record lend support to that position. For example, the Record of Decision seems to anticipate the possibility of “a separate NEPA process” that will take place when Defendants finally decide what to do with the rest of NC 12. J.A. 2500. And the Revised Section 4(f) evaluation seems to indicate that Defendants are contemplating the construction of something that has not previously been studied or disclosed: Under the Parallel Bridge Corridor with NC 12 Transportation Management Plan Alternative, later phases of actions to manage NC 12 through 2060 would be decided based on actual conditions existing on Hatteras Island at the point in time that additional action becomes necessary. These later phases could consist of, but would not be limited to, one or more components of any of the alternatives already studied as part of the environmental review process.... J.A. 1905 (emphasis added). Although it is possible to read such statements as Defendants’ attempts to commit to or authorize something outside the scope of what their NEPA documents have analyzed and disclosed, that is not how we view these isolated statements made in the context of hundreds of pages of analysis. And notwithstanding that the NC 12 Transportation Management Plan is really nothing more than a plan to make a plan for the remainder of NC 12, the public is clearly on notice that Defendants intend to pursue the five studied alternatives that pass through Hatteras Island and the Refuge—not the two alternatives that avoid Hatteras Island altogether via construction of a bridge in Pamlico Sound. And because Defendants have fully analyzed and disclosed the environmental impacts associated with these five legitimate alternatives, Defendants have complied with NEPA with regard to all five. Moreover, NEPA obligates agencies to continue to review the environmental consequences of their actions, and we think it is best to read Defendants’ statements that allude to a separate NEPA process simply as an acknowledgement of this requirement. If, for example, Defendants wait too long to implement the future phases of the Project, conditions on Hatteras Island could change so much that the current Environmental Impact Statement no longer covers the alternatives that they studied. If conditions change to such an extent, Defendants must issue a supplemental Environmental Impact Statement prior to taking any other action. 40 C.F.R. § 1502.9(c)(l)(i), (ii). Defendants’ statements in their Environmental Assessment and Record of Decision that seem to anticipate changing conditions cannot and do not shield them from NEPA’s procedural requirements. In sum, Defendants have not violated NEPA by engaging in unlawful segmentation with respect to the five studied parallel bridge alternatives. We thus affirm the district court’s grant of summary judgment on the NEPA issue. Our opinion may not, however, be construed as an authorization to proceed outside the scope of the previously studied alternatives, and Defendants’ doing so would almost surely violate NEPA. IV. A. Unlike NEPA, which “prohibits uninformed—rather than unwise—agency action[,]” Robertson, 490 U.S. at 351, 109 S.Ct. 1835, Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 303, imposes substantive restraints on an agency’s action. Under Section 4(f), the Secretary of Transportation (“Secretary”) is permitted to approve a transportation project that requires the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge ... or land of an historic site ... only if ... there is no prudent and feasible alternative to using that land; and ... the program or project includes all possible planning to minimize harm to the [publicly owned land] resulting from the use[.] 49 U.S.C. § 303(c). In other words, Section 4(f) property “may not be put to non-park uses unless there is no feasible and prudent alternative to the non-park use of the land.” Coal. for Responsible Reg’l Dev. v. Brinegar, 518 F.2d 522, 525 (4th Cir.1975). Further, the Secretary may approve a transportation project that uses Section 4(f) property only if “the program or project includes all possible planning to minimize harm to the ... wildlife and waterfowl refuge[J” 49 U.S.C. § 303(c)(2). The Secretary must perform a Section 4(f) evaluation and comply with that provision’s other substantive requirements before approving any use of Section 4(f) property. The same is not required, however, if the “joint planning exception” applies. Under the joint planning exception, [w]hen a property is formally reserved for a future transportation facility before or at the same time a [Section 4(f) property] is established and concurrent of joint planning or development of the transportation facility and the Section 4(f) resource occurs, then any resulting impacts of the transportation facility will not be considered a use as defined in § 774.17. 23 C.F.R. § 774.11(i). In other words, for a transportation facility that uses Section 4(f) property to escape the substantive requirements of Section 4(f), two conditions must be met. First, the property for the transportation facility must be “formally reserved ... before or at the same time” as the establishment of the Section 4(f) property. Id. Second, the transportation facility and the Section 4(f) property must be concurrently or jointly planned or developed. Id. If Section 4(f) property will be used and no exception applies, the Secretary must show that the project includes “all possible planning to minimize harm” to the Section 4(f) property and that “no prudent and feasible” alternatives are available. 49 U.S.C. § 303(c)(1)-(2). The “all possible planning” prong of the analysis cannot be met until a project’s design is complete. See D. C. Fed’n of Civic Ass’ns v. Volpe, 459 F.2d 1231, 1239 (D.C.Cir.1971). If all possible planning to minimize harm to the Section 4(f) property has not been completed before the Secretary’s approval of the project, the Section 4(f) evaluation is invalid because, “[a]bsent a finalized plan ..., it is hard to see how the Department could make a meaningful evaluation of ‘harm.’ ” Id. The Secretary must also find that there is “no prudent and feasible alternative” to using the Section 4(f) property. 49 U.S.C. § 303(c)(1). An alternative is infeasible only when it “cannot be built as a matter of sound engineering judgment.” 23 C.F.R. § 774.17(2); see also Overton Park, 401 U.S. at 411, 91 S.Ct. 814. To find an alternative to using Section 4(f) property imprudent, the Secretary must determine that the impacts or adverse effects associated with that alternative are extraordinary or unique. See id. at 413, 91 S.Ct. 814. The Secretary’s regulations explain that an alternative is imprudent if: (i) It compromises the project to a degree that it is unreasonable to proceed with the project in light of its stated purpose and need; (ii) It results in unacceptable safety or operational problems; (iii) After reasonable mitigation, it still causes: (A) Severe social, economic, or environmental impacts; (B) Severe disruption to established communities; (C) Severe disproportionate impacts to minority or low income populations; or (D) Severe impacts to environmental resources protected under other Federal statutes; (iv) It results in additional construction, maintenance, or operational costs of an extraordinary magnitude; (v) It causes other unique problems or unusual factors; or (vi) It involves multiple factors ... that while individually minor, cumulatively cause unique problems or impacts of extraordinary magnitude. 23 C.F.R. § 774.17(3)(i)-(vi). Imprudence may not provide cover for using Section 4(f) land “unless ‘there [are] truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reach[ ] extraordinary magnitudes.’ ” Hickory Neighborhood Def. League, 893 F.2d at 61 (quoting Overton Park, 401 U.S. at 413, 91 S.Ct. 814). See also, Monroe Cnty. Conservation Council, 472 F.2d at 700 (“[A] road must not take parkland, unless a prudent person, concerned with the quality of the human environment, is convinced that there is no way to avoid doing so.” (footnote omitted)). And a state may not use “self-imposed restrictions” on financing mechanisms to render an alternative imprudent. Coal. for Responsible Reg’l Dev., 518 F.2d at 526. The Secretary’s Section 4(f) evaluation of the entire project must be completed before the Record of Decision is issued and before work on the project begins. Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368, 373 (D.C.Cir.1999); see also 23 C.F.R. § 774.9(a) (“The potential use of land from a Section 4(f) property shall be evaluated as early as practicable ... when alternatives to the proposed action are under study.”). Further, the Secretary may not reduce the number of prudent and feasible alternatives that are available by fragmenting the evaluation and approval of a single project into separate parts. Instead, the Secretary must evaluate each project as a whole, not “phase-by-phase.” N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147, 1159 (9th Cir.2008). The Secretary’s determination that there are no feasible and prudent alternatives must “include sufficient supporting documentation to demonstrate why there is no feasible and prudent avoidance alternative and shall summarize the results of all possible planning[.]” 23 C.F.R. § 774.7(a). If there are no feasible and prudent alternatives to using Section 4(f) property, the Secretary may select only the alternative that “[clauses the least overall harm in light of [Section 4(f)’s] preservation purpose.” 23 C.F.R. § 774.3(c)(1). This determination involves balancing several factors, including: (1) the “ability to mitigate adverse impacts”; (2) the relative severity of the harm after mitigation; (3) the relative significance of the Section 4(f) property; (4) the “views of the official(s) with jurisdiction over each Section 4(f) property;” (5) the “degree to which each alternative meets the purpose and need for the project;” (6) “[a]fter reasonable mitigation, the magnitude of any adverse impacts to resources not protected by Section 4(f);” and (7) “[substantial differences in costs among the alternatives.” 23 C.F.R. § 774.3(c)(l)(i)-(vii). B. In reviewing an agency’s Section 4(f) determination, we must conduct a “thorough, probing, indepth review” to ensure that the Secretary’s determination complies with Section 4(f)’s requirements. Monroe Cnty. Conservation Council, 472 F.2d at 700 (internal quotation marks omitted). First, we consider whether the Secretary acted within the scope of his or her authority when conducting the Section 4(f) evaluation. Overton Park, 401 U.S. at 415, 91 S.Ct. 814. This requires examining whether the Secretary could have reasonably believed that no feasible and prudent alternatives to using Section 4(f) property existed. Id. at 416, 91 S.Ct. 814. Second, the reviewing court must consider whether the Secretary’s choice to use Section 4(f) property was “ ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Id. (quoting Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1964)). This determination requires us to review whether the Secretary’s “decision was based on a consideration of the relevant factors” and whether the factors actually support the Secretary’s determination. Hickory Neighborhood Def. League, 893 F.2d at 61-62 (internal quotation marks omitted). Finally, we must also determine whether the Secretary followed all procedural requirements. Overton Park, 401 U.S. at 417, 91 S.Ct. 814. C. 1. Plaintiffs contend that the district court erroneously applied the joint planning exception to the Project. They argue that when the Refuge was created, NC 12 had not yet been formally reserved and that it was not jointly or concurrently planned. Because the joint planning exception applies only when a transportation facility is “formally reserved ... before or at the same time,” as a Section 4(f) property, 23 C.F.R. § 774.11(i), the only relevant evidence is that which sheds light on the status of NC 12 on or before April 12, 1938, the date of the executive order establishing the Refuge. Yet some of the evidence on which the district court relied in deeming the joint planning exception applicable—the 1942 Coast Guard map, the North Carolina highway maps from 1944 and 1949, the 1951 Senate debate, the public law from 1951 authorizing DOI to grant an easement to North Carolina, the 1954 quitclaim deed, and the 1954 easement— prove nothing about the status of NC 12 when the Refuge was established. In other words, this evidence is wholly insufficient to support the application of the joint planning exception here. All we are left with, then, is a 1939 application for a ferry permit that describes ferry service beginning in 1926, photos of ferries carrying cars, and some 1938 reports from the Refuge’s manager that refer to a “public road.” None of this evidence demonstrates that NC 12 had been formally reserved as of April 12, 1938. At best, it shows that cars were crossing Oregon Inlet and perhaps driving on a “public road” sometime in 1938. Moreover, formal reservation “before or at the same time,” alone, even if it had been shown—and it was not—cannot support the application of the joint planning exception. Instead, the evidence must also show that “concurrent or joint planning or development” of NC 12 and the Refuge occurred. Id. But the evidence in the record here shows no such thing. Indeed, the only evidence that pertains to the planning of NC 12 is the 1951 public law authorizing DOI to grant an easement to North Carolina, North Carolina’s 1954 quitclaim deed, and DOI’s 1954 easement. Because these substantially postdate the establishment of the Refuge, they cannot possibly show “concurrent or joint planning or development” of NC 12 and the Refuge. Having sifted through the remainder of the record, we find nothing on which we could affirm the district court’s application of the joint planning exception. In other words, Defendants have fallen far short of demonstrating that there is “no genuine dispute as to any material fact” that would entitle them to summary judgment on this issue. Fed.R.Civ.P. 56(a). That being said, it is possible that a careful reading of the condemnation proceedings used by the United States to acquire the Refuge contain something indicating that NC 12 was formally reserved and concurrently or jointly planned at the same time that the Refuge was established. But that will require an odyssey into the facts of the condemnation proceedings and pertinent North Carolina property law that we refuse to undertake in the first instance. Accordingly, we reverse the district court’s application of the joint planning exception and remand the issue for further proceedings consistent with the detailed instructions in this opinion’s conclusion. 2. Despite the fact that the district court determined that the joint planning exception applied and that the Project was therefore not subject to Section 4(f)’s substantive requirements, the district court nevertheless analyzed whether Section 4(f)’s substantive requirements had been met. Because a Section 4(f) analysis is irrelevant if the joint planning exception applies, we will not engage in such an inquiry here. Of course, should the district court determine that the joint planning exception is inapplicable, it must examine the record to determine whether FHWA complied with the substance of Section 4(f). Y. For the foregoing reasons, we affirm the district court’s grant of summary judgment regarding Plaintiffs’ NEPA challenge, and we reverse the district court’s grant of summary judgment regarding Plaintiffs’ Section 4(f) challenge. We remand this case for further proceedings in accordance with this opinion. Specifically, the district court must examine the record to determine whether Section 4(f)’s joint planning exception applies. The only evidence relevant to this inquiry is that which pertains to the status of NC 12 when the Refuge was established. The district court may not apply the joint planning exception unless it determines that NC 12 was both formally reserved before or at the same time that the Refuge was established and jointly planned or developed with the Refuge. Should the district court conclude that the joint planning exception does not apply, it must then determine whether FHWA has complied with the substantive requirements of Section 4(f). The district court must determine whether FHWA conducted “all possible planning to minimize harm” to the Refuge, and it must determine whether FHWA acted in an arbitrary and capricious manner when it determined that no prudent and feasible alternative to the use of Refuge property for the Project existed. Finally, if the district court determines that FHWA’s determination regarding the lack of prudent and feasible alternatives was not arbitrary and capricious, it must determine whether FHWA has selected the alternative that causes the least overall harm to the Refuge. To the extent the district court previously analyzed the substantive requirements of Section 4(f), we expressly vacate that analysis and instruct the district court to follow the legal framework set forth in this opinion, make the determinations enumerated above, and engage in the requisite “thorough, probing, indepth review” to ensure that the Secretary’s determination complies with Section 4(f)’s requirements. Monroe Cnty. Conservation Council, 472 F.2d at 700. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED . NCDOT has had to seek DOI approval to reconstruct NC 12 west of its original right-of-way and outside the bounds of its easement. . "Preferred alternative” is a NEPA term of art. An agency must identify its preferred alternative "if one or more exists, in the draft statement and ... in the final statement unless another law prohibits the expression of such a preference.” 40 C.F.R. § 1502.14(e). . An agency must "prepare a concise public record of decision." 40 C.F.R. § 1505.2. The Record of Decision must “[s]tate what the decision was[,]” id. § 1505.2(a), "[¡Identify all alternatives considered ... specifying the alternative or alternatives which were considered to be environmentally preferable[J" id. § 1505.2(b), and "[s]tate whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why they were noth]" id. § 1505.2(c). Until an agency issues its Record of Decision, "no action concerning the proposal shall be taken which would: (1) [h]ave an adverse environmental impact; or (2) [l]imit the choice of reasonable alternatives" for the project. Id. § 1506.1(a). . The Road North/Bridge South Alternative was first introduced in the 2005 Supplemental Draft Environmental Impact Statement© Evaluation. As discussed ante at 384, it involved a complicated mix of a new bridge west of Hatteras Island near Rodanthe, a road both in the existing easement and well into the Refuge, several dunes, and a new bridge parallel to the Bonner Bridge. Defendants’ stated reasons for favoring this alternative in 2009 were (1) improved public access to the Refuge; (2) consistency with the historic landscape; (3) ability to mitigate significant impacts on the "wildlife features of the Refuge;” (4) substantial cost difference; (5) less impact on waterfowl; and (6) shorter construction timeframe and fewer construction impacts. J.A. 1821-23. .Adaptive management is "a set of policy tools ” directed at "ensuring the sustainability” of natural resources within 'distinct ecosystems. J.B. Ruhl et al., The Practice and Policy of Environmental Law 140 (2d ed.2010). It allows agencies to " ‘continually research! 1, monitor[ ], and evaluate] the ecological conditions of ecosystems' ” and to modify their efforts to restore those ecosystems based on that research: Id. (quoting U.S. Gen. Accounting Office, Ecosystem Management, Additional Actions Needed to Adequately Test a Promising Approach 49 (1994)). Agencies may use adaptive management to mitigate adverse environmental impacts. See, e.g., Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 517 (D.C.Cir.2010). But adaptive management is not a method through which agencies can defer decision-making about how a resource will be used. See id. at 505-06, 516. . The distinction between a refuge and a historic property can be significant. For example, before making a finding of de minimis impact regarding refuge property, the Secretary must provide an opportunity for public review and comment. 49 U.S.C. § 303(d)(3). There is no similar requirement for historic sites. 49 U.S.C. § 303(d)(2). See also 23 C.F.R. § 774.5(b)( 1 )(iii) (imposing no public participation requirement beyond the minimal encouragement of public involvement in-eluded in the National Historic Preservation Act and 36 C.F.R. § 801.8). Also, refuges are presumed to be significant resources unless the official with jurisdiction over the property makes an express determination to the contrary. 23 C.F.R. § 774.11(c). Historic sites, on the other hand, are considered significant only if they are included in, or are eligible for, the National Register of Historic Places. 23 C.F.R. § 774.11(e). . An Environmental Assessment is "a concise public document” intended to "provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.” 40 C.F.R. § 1508.9(a)(1); see also Friends of Back Bay v. U.S. Army Corps of Eng'rs, 681 F.3d 581, 584 (4th Cir.2012) (noting that an EA is used "[t]o determine whether a particular action meets the threshold of significantly affecting environmental quality” such that an agency is required to complete an Environmental Impact Statement pursuant to 40 C.F.R. § 1502.3) (internal quotation marks omitted). An Environmental Assessment is "more limited” than an Environmental Impact Statement in its analysis of the potential environmental impacts. Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 757, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). . The term "transportation management plan” refers to a comprehensive document that "lays out a set of strategies for managing the work zone impacts of a project.” Transportation Management Plan Examples-FHWA Work Zone, http://www.ops.fhwa.dot.gov/wz/ resources/fmal_rule/tmp_examples.htm. (saved as ECF opinion attachment). A reasonable reader might expect to find such a document somewhere in the record, given statements made in the Record of Decision, such as: "The Transportation Management Plan will guide the implementation of future phases of the project through 2060.” J.A. 2497. "The NC 12 Transportation Management Plan ... provides a detailed plan to closely monitor the coastal conditions for environmental changes over the next 50 years along with changes in associated road maintenance activities.” J.A. 2497-98. "The NC 12 Transportation Management Plan then describes the process for decision-making regarding the future phase actions.” J.A. 2498. Some of these statements also appear in the EA. See J.A. 2182-83. . It seems that Defendants may already be proceeding with future phases. See J.A. 2682, N.C. Dep’t of Transp., Bonner Bridge Public Worlcshops Handout (2011) ("NCDOT has started work on long-term solutions for [breached locations along N.C. 12 in northern Rodanthe and the Pea Island National Wildlife Refuge], which combined are considered Phase II of the Bonner Bridge Replacement Project.”); see also J.A. 2693 (discussing NCDOT’s plan to issue contracts for the two breach sites in August and December 2012). . Although it acknowledged the existence of future phases, the district court analyzed the Project as if it consisted of only the replacement bridge over the Oregon Inlet, and it concluded that such a Project did not violate NEPA's anti-segmentation principles. As discussed below, we reject the district court's approach because it was based on a project other than the one described in the record. We note that the district court’s analysis may have been appropriate if Plaintiffs had, for example, demonstrated that none of Defendants’ studied alternatives for NC 12 south of the bridge could be constructed as a matter of fact. If that were the case, then the replacement bridge would be required to connect “logical termini," 23 C.F.R. § 771.111(f)(1), have "independent utility,” 23 C.F.R. § 771.111(f)(2), and “[n]ot restrict consideration of alternatives for other reasonably foreseeable transportation improvements,” 23 C.F.R. § 771.111(f)(3). We do not pass upon the correctness of the district court’s illegal segmentation analysis because nothing in the record on appeal indicates that Defendants cannot construct at least one of their previously studied alternatives. . To recap, these five alternatives were titled: (1) Parallel Bridge Corridor With Nourishment; (2) Parallel Bridge Corridor With Road North/Bridge South; (3) Parallel Bridge Corridor With All Bridge; (4) Parallel Bridge Corridor With Phased Approach/Rodanthe Bridge (Preferred); and (5) Parallel Bridge Corridor With Phased Approach/Rodanthe Nourishment. The 2008 Final Environmental Impact Statement also included the two alternatives that consisted of a long bridge in Pamlico Sound: (1) Pamlico Sound Bridge Corridor With Curved Rodanthe Terminus; and (2) Pamlico Sound Bridge Corridor With Intersection Rodanthe Terminus. . The Council on Environmental Quality is the executive agency responsible for promulgating regulations that implement NEPA. See 42 U.S.C. § 4342; Exec. Order No. 11,991, 42 Fed.Reg. 26,967 (May 25, 1997). Courts give “substántial deference” to the Council on Environmental Quality's regulations. Nat’l Audubon Soc’y v. Dep’t of the Navy, 422 F.3d 174, 184 (4th Cir.2005) (quoting Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979)). Additionally, each federal agency must ensure that it complies with NEPA, and FHWA has established its own regulations for this purpose. See 23 C.F.R. § 771.101. . The term "Section 4(f)” refers to this provision’s original location in the Department of Transportation Act of 1966. Pub.L. No. 89-670, 80 Stat. 931 (1966). The text of Section 4(f) has now been codified at both 23 U.S.C. § 138 and 49 U.S.C. § 303. The name "Section 4(f)” is no longer indicative of the provision’s location, but the term is so widely recognized that it continues to be used to avoid “needless confusion.” 23 C.F.R. 771.107(e) n. 2 (2013). . The term "Section 4(f) property” refers to "publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local significance[.]” 23 C.F.R. § 774.17. A "‘use’ of Section 4(f) property occurs[,]" among other things, "[w]hen land is permanently incorporated into a transportation facility[.]” 23 C.F.R. § 774.17. . We note that the district court may need to consider whether Defendants' compliance with Section 4(f) can be fully determined before Defendants have committed to and disclosed the particulars of the future phases.

American Rivers, Inc. v. United States Army Corps of Engineers

GRUENDER, Circuit Judge. In these consolidated appeals, various parties challenge the operation of the Missouri River main stem reservoir system by the United States Army Corps of Engineers (“the Corps”) and associated wildlife assessments produced by the United States Fish and Wildlife Service (“FWS”). The district court granted summary judgment to the Corps and FWS and their named individual officers (collectively “the Federal Defendants”) on all claims. For the reasons stated below, we dismiss three claims as moot and affirm the judgment of the district court on all remaining claims. I. BACKGROUND The Missouri River originates in Montana and runs through North Dakota, South Dakota, Nebraska, Iowa, Kansas and Missouri before emptying into the Mississippi River. In its natural state, the river subjected the surrounding basin to extensive flooding every spring. With the Flood Control Act of 1944 (“FCA”), Congress authorized the construction of a dam and reservoir system on the upper river to control the flooding. In addition to flood control, the FCA envisioned that the reservoirs would provide water for local irrigation projects, steady release into the river during the summer months to support downstream navigation, hydroelectric power generation and lake recreation. The FCA delegated construction and management of the main stem reservoir system to the Corps. The current challenges to the Corps’ operation of the system arise from two directions. First, a persistent drought in the Missouri River basin has led to a recurring conflict between upstream and downstream water-use interests. In 2002, the Corps planned to release water from Lake Oahe into the river to maintain downstream navigation throughout the summer. South Dakota, fearing a negative impact on the seasonal fish spawn in Lake Oahe and concordantly on the reservoir’s sport fishing industry, obtained an injunction in federal district court preventing the Corps from lowering any reservoir in South Dakota until after spawning season. When the Corps decided to lower Lake Sakakawea instead, North Dakota obtained a similar injunction. Not to be outdone, Montana obtained an injunction to prevent releases from Fort Peck Lake. In response, Nebraska obtained an injunction ordering the Corps to make the required releases to support navigation as called for by the Corps’ Missouri River Main Stem Reservoir System Master Water Control Manual (“1979 Master Manual”). In a consolidated appeal of these injunctions, we ruled that the FCA vested the Corps with discretion to balance the competing water-use interests. South Dakota v. Ubbelohde, 330 F.3d 1014, 1027 (8th Cir.2003). Because the FCA’s legislative history and its interpretation by the Supreme Court “indicate[] that the Corps’s primary concerns should be flood control and navigation,” we upheld the Corps’ decision to follow the 1979 Master Manual and draw down the reservoirs to support downstream navigation. Id. at 1032. The second point of conflict has been that flood prevention and steady summer flows for downstream navigation disrupt the natural habitat of protected bird and fish species in the Missouri River ecosystem. In litigation initially separate from the Ubbelohde cases, environmental groups have attempted to force the Corps to operate the system to produce more “natural” river flows to benefit the protected species. To understand the current stances of the parties in this litigation, it is necessary to review in some detail the Corps’ previous attempts to accommodate competing interests while developing its operating procedures. The Corps sets forth its general operational guidelines for the Missouri River reservoir system in a Master Manual and the operational details for each year in an Annual Operating Plan. The first Master Manual was published in 1960 and revised in 1973, 1975 and 1979. The year 1987 brought the onset of the first persistent drought in the region since the reservoir system had become fully operational. Because it found that the operational procedures in the 1979 Master Manual were not well-tailored to handle a persistent drought, the Corps began the revision process for what would become the 2004 Master Manual. The operation of the reservoir system also brings the Corps within the provisions of the Endangered Species Act (“ESA”). Under the ESA, if a government agency concludes that a proposed action may “jeopardize the continued existence” of any protected species or adversely affect its critical habitat, the agency must prepare a Biological Assessment and consult with the FWS. ESA § 7, 16 U.S.C. § 1536. The FWS then issues a Biological Opinion (“BiOp”) describing how the action will affect the species, based on the “best scientific and commercial data available.” Id. at § 1536(a)(2). If the FWS concludes that the proposed action would cause jeopardy to an endangered or threatened species, the BiOp must include a Reasonable and Prudent Alternative which would allow the agency to implement the desired action while avoiding jeopardy to the species. Id. at § 1536(b)(3)(A). Finally, if it appears incidental “take” will occur even if the Reasonable and Prudent Alternative is implemented, the BiOp must include an Incidental Take Statement setting conditions under which the agency may proceed while avoiding liability for the incidental harm to the protected species. Id. at § 1536(b)(4). The Corps followed the above process with three protected species in the Missouri River basin: the pallid sturgeon, a fish listed as endangered since 1990; the least tern, a migratory bird listed as endangered since 1985; and the piping plover, a migratory bird listed as threatened since 1985. The pallid sturgeon spends its entire life cycle in the Missouri and Mississippi Rivers and their tributaries, while the tern and plover both nest in the summer on sparsely vegetated sandbars along the rivers. In 2000, the FWS issued a Biological Opinion (“2000 BiOp”) finding that the Corps’ proposed operation of the reservoir system was likely to jeopardize the continued existence of the three species. The FWS found that the harm to the species resulted from the alteration of the river’s natural hydrograph. Before the construction of the dams, the hydrograph had two prominent components: the “spring rise” and “summer low flow.” The “spring rise” refers to extremely high flows in late spring resulting from the spring thaw. According to the 2000 BiOp, the spring rise provided a biological spawning cue for the pallid sturgeon and enabled the river to capture protein-rich nutrients from the floodplain and from wetland habitat not connected to the river channel during other seasons. In concert with the summer low flow, the spring rise also provided seasonal connectivity to the off-channel wetland habitat, making calm, shallow pools available to the pallid sturgeon for spawning, nursery and feeding areas. Lower elements of the food chain also were forced to congregate in the remaining pools, providing easy summer feeding for the protected species. In addition, the spring rise scoured and flushed sandbars. When the now-sparsely-vegetated sandbars were exposed by the summer low flow, the resulting lack of cover for concealed predators allowed terns and plovers to nest there safely. The Corps’ operation of the reservoir system, generally capturing water in the upstream reservoirs to eliminate spring flooding and releasing water throughout the summer and fall as necessary to enable downstream navigation and restore reservoir capacity for the following spring, eliminated the spring rise and summer low flow from the hydrograph. The Reasonable and Prudent Alternative included with the 2000 BiOp (“2000 BiOp RPA”) stated that “higher spring and lower or declining summer flows than now exist” were “an integral component of the measures to avoid jeopardy” to the three protected species. The 2000 BiOp RPA also mandated habitat restoration, a comprehensive species and habitat monitoring program, and an adaptive management framework to “implement, evaluate, and modify the components of the RPA in response to variable river conditions, species responses, and increasing knowledge base.” In an attempt to support downstream water-use interests despite the continuing drought in the basin, the Corps released a draft Annual Operating Plan for 2003 that did not incorporate the flow changes from the 2000 BiOp RPA. Environmental interest groups filed suit under the ESA in the United States District Court for the District of Columbia to enjoin operations under that plan. At the Corps’ request, the FWS then issued a supplemental biological opinion (“the 2003 Supplemental BiOp”) that ratified the Corps’ plan to avoid the 2000 BiOp RPA flows for the period of May 1 through August 15, 2003, with the understanding that operations after 2003 would be consistent with the 2000 BiOp. Before the district court, however, the Corps revealed that it had no intention of ensuring that its future operations would so comply. Am. Rivers v. United States Army Corps of Eng’rs, 271 F.Supp.2d 230, 253 (D.D.C.2003). In addition, the district court held that it was improper for the FWS to focus on the effects that the proposed action would have on the protected species during 2003 only, rather than on all future effects of the proposed action, and that the 2003 Supplemental BiOp failed to articulate a reasonable explanation for its departure from the analysis in the 2000 BiOp. Id. at 254-57. Therefore, the district court granted the injunction and ordered the Corps to comply with the summer low flow provisions of the 2000 BiOp. Id. at 263. Citing a conflict with this Court’s Ubbelohde holding that required operation consistent with the 1979 Master Manual, the Corps initially failed to comply with the injunction and was held in conditional contempt. See Am. Rivers v. United States Army Corps of Eng’rs, 274 F.Supp.2d 62 (D.D.C.2003). Two days later, the Federal Judicial Panel on Multi-District Litigation consolidated all litigation regarding the operation of the Missouri River main stem reservoir system, including new suits by the parties involved in Ubbelohde, in the District of Minnesota (“MDL court”). On the order of that court, the Corps complied with the summer low flow provisions of the 2000 BiOp RPA for the brief remainder of the 2003 summer period. At that point, the Corps prepared a new Biological Assessment with the goal of finding a way to avoid jeopardy to the protected species without following the 2000 BiOp RPA flow requirements. In the fall of 2003, the Corps presented the new Biological Assessment to the FWS and requested a new Biological Opinion. In response, the FWS issued an Amendment to the 2000 BiOp (“the 2003 Amended BiOp”). The 2003 Amended BiOp RPA permitted the Corps to avoid the summer low flow requirement on the condition that it construct 1,200 additional acres of shallow water habitat for the pallid sturgeon. In addition, it gave the Corps two more years to experiment with alternatives to a spring rise. If the Corps could not produce an acceptable alternative plan, the RPA imposed a default spring rise of reduced magnitude beginning in the spring of 2006. The Corps continued to develop the 2004 Master Manual by complying with the provisions of the National Environmental Policy Act (“NEPA”). See 42 U.S.C. §§ 4321 et seq. NEPA requires the preparation of a detailed Environmental Impact Statement (“EIS”) for every major federal action that will significantly affect the quality of the environment. 42 U.S.C. § 4332(C). The EIS must also evaluate alternatives to the proposed action. Id. In this case, the Corps compared five potential water control plans in its EIS before adopting the Preferred Alternative, a plan consistent with the 2003 Amended BiOp, as the basis for the 2004 Master Manual. The MDL court truncated the NEPA public-comment-and-review period and ordered all plaintiffs in this litigation to amend their complaints to address the 2004 Master Manual and 2004 Annual Operating Plan. After the issuance of the 2004 Master Manual and 2004 Annual Operating Plan, various parties filed motions for summary judgment. The district court granted summary judgment to the Federal Defendants on all claims on the bases that (1) the FCA does not create a non-discretionary duty in the Corps to maintain minimum navigation flows or a minimum length for the navigation season, and (2) the discretionary decisions made by the Federal Defendants in balancing water-use interests under the FCA and in avoiding jeopardy to the protected species were not arbitrary and capricious. The parties now make various arguments on appeal. The states of Missouri and Nebraska and the Nebraska Public Power District (“NPPD”) argue that the 2004 Master Manual violates a non-discretionary duty of the Corps under the FCA to maintain river flow sufficient to support uninterrupted downstream navigation throughout the navigation season. Nebraska and NPPD also argue that the 2003 Amended BiOp is in conflict with the purported FCA minimum-flow requirement, while Missouri argues that the 2003 Amended BiOp violates the ESA because it will eliminate some pallid sturgeon habitat in the lower Missouri River. American Rivers, the National Wildlife Federation, several state Wildlife Federations and the Izaak Walton League of America (collectively “American Rivers”) argue that the 2003 Amended BiOp is arbitrary and capricious because it does not insure against jeopardy to the three protected species. In addition, American Rivers contends that the EIS was faulty because the Corps failed to explain why the Preferred Alternative was superior to another evaluated alternative. Blaske Marine, ConocoPhil-lips Company, Ergon Asphalt & Emulsions, Inc., Magnolia Marine Transport Company, Midwest Terminal Warehouse Company, Inc., MO-ARK Association and Missouri River Keepers (collectively “Blaske Marine”) argue that a supplemental EIS is required for a contingent summer low flow that the Corps still has the discretion to implement. Finally, the Mandan, Hidasta and Ankara Nation (“the Nation”) contends that the Corps must operate Lake Sakakawea (Garrison Dam) for the economic benefit of the Nation’s members. II. DISCUSSION “We review de novo a grant of summary judgment, applying the same legal standards used by the district court.” Voyageurs Nat’l Park Ass’n v. Norton, 381 F.3d 759, 763 (8th Cir.2004). We review the actions of the Corps and FWS under the Administrative Procedure Act “to determine whether they are ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Ubbelohde, 330 F.3d at 1027 (quoting 5 U.S.C. § 706(2)(A)). An arbitrary and capricious action is one in which: 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. Cent. S.D. Coop. Grazing Dist. v. Sec’y of the United States Dep’t. of Agric., 266 F.3d 889, 894 (8th Cir.2001) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). “If an agency’s determination is supportable on any rational basis, we must uphold it.” Voyageurs Nat’l Park Ass’n, 381 F.3d at 763. “When the resolution of the dispute involves primarily issues of fact and analysis of the relevant information ‘requires a high level of technical expertise, we must defer to the informed discretion of the responsible federal agencies.’ ” Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1128 (8th Cir.1999) (quoting Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)). A. The Corps’ FCA Duty to Support Downstream Navigation Missouri, Nebraska and NPPD (collectively “the downstream parties”) argue that the 2004 Master Manual is not in accordance with law because, under certain drought conditions, it calls for canceling the navigation season in order to hold water in the reservoirs for the benefit of recreation. The MDL court concluded that the FCA imposes no duty to maintain a minimum level of downstream navigation independent of consideration of other interests. We agree. This Court has already addressed thoroughly the balance of interests under the FCA. In Ubbelohde, we relied on the Supreme Court’s decision in ETSI Pipeline Project v. Missouri, 484 U.S. 495, 108 S.Ct. 805, 98 L.Ed.2d 898 (1988), and the legislative history of the FCA to determine that “[t]he dominant functions of the Flood Control Act were to avoid flooding and to maintain downstream navigation,” while “the Act recognizes secondary uses of the River including irrigation, recreation, fish, and wildlife.” Ubbelohde, 330 F.3d at 1019-20. However, the FCA does not set forth what level of river flow or length of navigation season is required to make navigation “dominant” over a “secondary” interest such as recreation. Instead, “the courts can review the Corps’s decisions to ensure that it considered each of these interests before making a decision,” but “the Act does not provide ... a method of deciding whether the balance actually struck by the Corps in a given case is correct or not.” Id. at 1027. The downstream parties challenge the provisions of the 2004 Master Manual referred to as “navigation precludes.” The amount of water stored in the entire reservoir system is checked on March 15 and July 1 of each year. If total system storage falls below the “volumes ... that allow the System to function to meet authorized purposes during significant multi-year drought periods,” navigation support is reduced or eliminated for that year. 2004 Master Manual § 7-03. The EIS estimates, based on the modeling of historical data from 1898 to 1997, that the selected navigation-preclude volumes will lead to the elimination of the entire navigation season only in the four worst drought years out of every one hundred years, and to a navigation season shortened from eight-plus months to less than seven months only in the eight worst drought years out of every one hundred. Under these circumstances, we cannot say that the Corps failed to consider downstream navigation before making its decision. Appellees North Dakota and South Dakota argue that because damage to the recreation industry would have a more dramatic negative economic impact than would damage to the navigation industry, recreation should receive special priority. Nothing in the text or legislative history of the FCA suggests that Congress intended the priority of interests under the FCA to shift according to their relative economic value. Arguments based on the wisdom of the priorities established by the FCA must be addressed to Congress. The Corps’ balancing of water-use interests in the 2004 Master Manual is in accordance with the FCA. Because the 2004 Master Manual does not evidence a failure to consider the support of downstream navigation, it is not arbitrary and capricious. Therefore, we affirm the grant of summary judgment to the Corps on this claim. B. The Corps’ Duty to Consult with the FWS under ESA § 7 Nebraska and NPPD argue that it was not in accordance with law for the Corps to engage in the ESA § 7 consultation process with the FWS regarding the operation of the reservoir system. They contend that the ESA does not apply to the operation of the reservoir system because ESA compliance would interfere with downstream navigation, a project purpose that is mandated by statute such that the Corps has no discretion in meeting it. See 50 C.F.R. § 402.03 (“Section 7 [of the ESA] and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control.”) (emphasis added). Case law supports the contention that environmental— and wildlife-protection statutes do not apply where they would render an agency unable to fulfill a non-discretionary statutory purpose or require it to exceed its statutory authority. For example, in National Wildlife Federation v. United States Army Corps of Engineers, 384 F.3d 1163 (9th Cir.2004), the Ninth Circuit held that the Corps’ operation of four dams on the Snake River did not violate the Clean Water Act. The challenged noncompliance with water standards was caused by “the existence of the dams and not any discretionary method of operating the dams,” and the Clean Water Act could not be construed to supersede “the Corps’s operation of the dams consistent with the purposes stated by Congress.” Id. at 1178-79. Similarly, in Platte River Whooping Crane Critical Habitat Maintenance Trust v. FERC, 962 F.2d 27 (D.C.Cir.1992), the Federal Energy Regulatory Commission (FERC) was authorized by statute to issue annual licenses to hydro-power providers on the Platte River. The enabling statute forbade alteration of the terms of an annual license without agreement from the licensee. Environmental groups sued FERC, arguing that the ESA required the imposition of wildlife-protection terms in the licenses. The court held that the ESA did not apply to the licenses because the ESA did not authorize FERC to override the statutory prohibition on altering the licenses. Id. at 32-34. In effect, Platte River Whooping Crane affirmed that the ESA does not apply where an agency has no statutory authority to act with discretion. Cases such as National Wildlife Federation and Platte River Whooping Crane are inapposite to the instant case, however, because compliance with the ESA does not prevent the Corps from meeting its statutory duty under the FCA to support downstream navigation. As we stated above, the FCA does not mandate a particular level of river flow or length of navigation season, but rather allows the Corps to decide how best to support the primary interest of navigation in balance with other interests. The 2004 Master Manual demonstrates that the Corps can comply with the elements of the 2003 Amended BiOp RPA while continuing to operate the dams “consistent with the purposes stated by Congress” in the FCA. Nat’l Wildlife Fed’n, 384 F.3d at 1179. Because the Corps is able to exercise its discretion in determining how best to fulfill the purposes of the reservoir system’s enabling statute, the operation of the reservoir system is subject to the requirements of the ESA. It was therefore in accordance with law for the Corps to consult with the FWS to produce the 2003 Amended BiOp. We affirm the grant of summary judgment to the Federal Defendants on this claim. C. Mootness of Claims Based on Summer Low Flow Several of the claims against the Federal Defendants challenge the conditional summer low flow element of the 2003 Amended BiOp RPA. The Federal Defendants argue that these claims are now moot because the Corps has successfully completed the mechanical construction of 1,200 acres of shallow water habitat, which permits the Corps to avoid the summer low flow requirement. The Corps has announced that it has no plans to implement summer low flows in the foreseeable future. Missouri, NPPD and Blaske Marine counter that because the Corps retains the discretion to implement the summer low flow in any given year under its adaptive management framework, these claims fall within the “capable of repetition, yet evading review” exception to mootness. Ubbelohde, 330 F.3d at 1023 (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975)). We conclude that the claims based on summer low flow are moot. The “capable of repetition, yet evading review” exception “applies when two conditions are met: ‘(1) the challenged action [is] in its duration too short to be fully litigated pri- or to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.’ ” Id. (quoting Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)). In this case, it appears that the 30-day duration of a summer low flow period, particularly if it is implemented with little prior warning, is too short to be fully litigated prior to expiration. However, there is no reasonable expectation that the Corps will implement the 2003 Amended BiOp summer low flow in the future. Although a “ ‘party need not show with certainty that the situation will recur,’ ” a “speculative possibility is not a basis for retaining jurisdiction over a moot case.” McCarthy v. Ozark Sch. Dist., 359 F.3d 1029, 1036 (8th Cir.2004) (quoting Van Bergen v. Minnesota, 59 F.3d 1541, 1547 (8th Cir.1995)). We are aware that the 2003 Amended BiOp requires the Corps to be ready to implement summer low flows as low as 21 Kefs in the future if monitoring reveals that the alternate measures are not benefitting the protected species as expected. Nevertheless, as we discuss later in this opinion, at this point there is no reason to doubt the utility of those alternate measures. Therefore, “we find nothing to suggest a likelihood” that the Corps will decide to implement a summer low flow in future years. McCarthy, 359 F.3d at 1036. Because there is no reasonable expectation at this point in time that the Corps will implement the 2003 Amended BiOp summer low flow in the future, we conclude that the following claims are moot: (1) NPPD’s claim that the FWS failed to consider the economic feasibility of the summer low flow requirement in developing the 2003 Amended BiOp; (2) Missouri’s claim that the loss of shallow water habitat for larval and juvenile pallid sturgeon in central Missouri state resulting from summer low flow constitutes an impermissible “take” of the sturgeon under ESA § 9; and (3) Blaske Marine’s NEPA claim that a supplemental EIS is required for the 2003 Amended BiOp summer low-flow requirement. We vacate the MDL court’s grant of summary judgment to the Federal Defendants on these claims and instruct the MDL court to dismiss these claims without prejudice. D. The Validity of the 2003 Amended BiOp NPPD argues that the 2003 Amended BiOp is invalid because the FWS violated regulations applicable to Biological Opinions. American Rivers challenges the 2003 Amended BiOp on the grounds that the 2003 Amended BiOp RPA contradicts its own factual findings and the administrative record and does not insure against jeopardy to the protected species. 1. The Environmental Baseline for the 2003 Amended BiOp NPPD contends that the FWS used an improper environmental baseline in producing the 2003 Amended BiOp. “The environmental baseline includes the past and present impacts of all Federal, State, or private actions and other human activities in the action area .... ” 50 C.F.R. § 402.02. Jeopardy to the protected species resulting from the proposed action is measured relative to the species’ status under the baseline. Id. The FWS used a “run-of-the-river” baseline in which the dams and physical channel modifications are assumed to be in place, but all floodgates are assumed to be wide open, with no flow control. NPPD argues that normal operation under the 1979 Master Manual was the proper baseline because it is a “past impact” of a separate federal action and would continue to control operations absent the proposed action. Because continued operation under the 1979 Master Manual would cause the protected species’ chances of recovery to deteriorate, its inclusion in the baseline would tend to eliminate a finding of jeopardy for any proposed action. According due deference to the FWS’ interpretation of its own regulations, Friends of the Boundary Waters Wilderness, 164 F.3d at 1121, we agree with the FWS that hypothetical continued operation under the previous version of the Master Manual in future years, as the alternative to the proposed action of updating the Master Manual, does not in any sense constitute a “past impact” of federal action. As the district court recognized, this argument is essentially a different twist on the argument that the Corps has no discretion in operating the reservoir system. If the FCA mandated that the Corps must manage the system to enable, for example, a barge of specific size riding a specific depth below the waterline to navigate the river between Sioux City and the Mississippi River at all times between April 1 and December 1, there would be some merit to including that non-discretionary condition in the environmental baseline along with the permanent physical presence of the dams and channel modifications. However, given that the FCA “clearly gives a good deal of discretion to the Corps in the management of the River,” Ubbelohde, 330 F.3d at 1027, we cannot say that it was arbitrary and capricious for the FWS not to include a specific operational profile in the environmental baseline. Therefore, we affirm the grant of summary judgment to the Federal Defendants on this claim. 2. Use of the Best Scientific and Commercial Data Available NPPD argues that the FWS did not rely on the best scientific data available in its efforts to create a “normalized” hydrograph in the 2003 Amended BiOp RPA. “In formulating its biological opinion, [and] any reasonable and prudent alternatives ... the [FWS] will use the best scientific and commercial data available.” 50 C.F.R. § 402.14(g)(8); see 16 U.S.C. § 1536(a)(2). To create a normalized version of the summer low flow portion of the natural hydrograph, the 2003 Amended BiOp calls for low flows beginning in July. NPPD directs our attention to a United States Geological Survey report in the administrative record showing that, before construction of the dams, the lowest summer flows usually occurred between August and early October. NPPD contends that this incongruity evidences a failure to use the best scientific data available to formulate the 2003 Amended BiOp. The administrative record as a whole shows that the FWS did not ignore the best scientific data on the summer low flow in formulating the 2003 Amended BiOp. For example, in a document e-mailed by the FWS to new members of the 2003 Amended BiOp development team in November 2003, the FWS recognized that “[t]he historic hydrograph began to fall at Gavins Point in mid-June and reached it’s [sic] lowest levels in the fall months,” but indicated that the FWS proposal would end the low flow period in August because higher releases in the fall were necessary “to evacuate any excess water [from the reservoirs] prior to the next water year.” The FWS then stated that, “[w]hile this approach is not a perfect fit to the historic hydrograph, we believe that it sufficiently mimics ... the natural hydrograph” to have the necessary beneficial effect on the protected species. The FWS has never found that an exact replication of the natural hydrograph was necessary to avoid jeopardy to the protected species, and the record shows “a rational connection between the facts found and the decision made” about the timing of the low flow period. Gifford Pinchot Task Force v. United States Fish & Wildlife Serv., 378 F.3d 1059, 1065 (9th Cir.2004). Therefore, we affirm the grant of summary judgment to the Federal Defendants on this claim. 3. The Consistency of the 2003 Amended BiOp Factual Findings and the RPA for the Pallid Sturgeon American Rivers argues, on the basis of the factual findings in the 2003 Amended BiOp and the administrative record underlying it, that the conditional replacement of the 2000 BiOp RPA summer low flow requirement with the mechanical construction of 1,200 additional acres of artificial shallow water habitat for the pallid sturgeon is arbitrary and capricious. The 2003 Amended BiOp incorporated findings from the 2000 BiOp and stated that “[u]ntil a semblance of the normalized hydrograph is restored and habitat is generated and maintained through re-establishment of these [ecological] processes, listed species will continue to decline.” In addition, the executive summary of the 2003 Amended BiOp summarizes, with regard to the pallid sturgeon: The proposed accelerated habitat restoration program in the Lower Missouri River will have little benefit to the pallid sturgeon without a concurrent or subsequent change in operations to provide a more normalized hydrograph to (1) provide the spawning cues that are critical for pallid sturgeon reproduction and (2) allow larvae and juveniles to move into shallow water habitat. American Rivers contends that the above statements, and others like them in the administrative record, show that the FWS was irrational in abandoning any semblance of half of the natural hydro-graph, the summer low flow, in exchange solely for habitat construction. However, evidence in the record adequately explains the decision made by the FWS. First, Appendix A of the Corps’ 2003 Biological Assessment, entitled “New Information Since the 2000 BiOp,” includes the results of extensive modeling of the river showing that the proposed 2000 BiOp summer low flow would be expected to increase suitable shallow water habitat by 1, 189 acres over that existing during regular summer service flows. The creation of 1,200 acres of habitat, therefore, provides the same total acreage of accessible calm, shallow pools during regular summer service flows as the 2000 BiOp summer low flow would have produced. Second, the 2003 Amended BiOp RPA retains a spring rise requirement, and the Corps must tailor the spring rise to provide the necessary biological spawning cues and floodplain connectivity with the shallow water habitat. Third, the 2003 Amended BiOp RPA requires the Corps to monitor the pallid sturgeon population and collaborate with the FWS to adjust these measures if necessary. Finally, the avoidance of summer low flow preserves the existing Lisbon chute shallow water habitat, the only site in the river where larval pallid sturgeon occur naturally, from potential damage. American Rivers argues that the 2003 Amended BiOp did not state that the mechanical construction of 1,200 acres was designed to replace the additional acreage that would have resulted from summer low flow. American Rivers contends that this rationale is therefore an impermissible post hoc rationalization by counsel. “[CJourts may not accept appellate counsel’s post hoc rationalizations for agency action.” Motor Vehicle Mfrs., 463 U.S. at 50, 103 S.Ct. 2856. However, there is no requirement that every detail of the agency’s decision be stated expressly in the 2003 Amended BiOp. The rationale is present in the administrative record underlying the document, and this is all that is required. Mo. Coalition for the Env’t v. Corps of Eng’rs of the United States Army, 866 F.2d 1025, 1031 (8th Cir.1989), overruled on other grounds, Goos v. ICC, 911 F.2d 1283 (8th Cir.1990). Therefore, the Federal Defendants’ rationale is not an impermissible post hoc rationalization. We conclude that the Federal Defendants have demonstrated a rational connection between the facts in the record and the decision to substitute 1,200 mechanically constructed acres of shallow water habitat for the 1,189 acres that would have been created by the 2000 BiOp summer low flow. Therefore, we affirm the grant of summary judgment to the Federal Defendants on this claim. Jp. The Consistency of the 2008 Amended BiOp Factual Findings and the RPA for the Least Tern and Piping Plover American Rivers argues that the elimination of the 2000 BiOp RPA spring rise and summer low flow requirements for the benefit of the least tern and piping plover is arbitrary and capricious. The 2000 BiOp flow requirements for the tern and plover were premised on factual findings that a spring rise was necessary to scour vegetation from sandbars, while the summer low flow would expose the resulting sparsely vegetated sandbars for safe nesting. The 2003 Amended BiOp RPA replaced the spring rise and summer low flow requirements with increased focus on the mechanical construction and clearing of sandbar habitat for the birds and adjustment of flow levels during the nesting season to minimize the potential for flooding nests. In making these changes in the 2003 Amended BiOp, the FWS had the benefit of a new Corps analysis of the river’s geomorphological processes. The Corps’ computer models indicated that, given the man-made alterations to the river channel, a spring rise as envisioned in the 2000 BiOp would not produce scoured sandbar habitat for use by the tern and plover. In fact, the models showed that those flows were more likely to reduce the quality of previously available habitat. The 2003 Amended BiOp also included information about tern and plover populations that was not available for the 2000 BiOp. The updated information included the fact that “recent counts of least terns (approximately 12,305 terns in 2003) exceed the overall recovery objective of 7,000 birds,” although geographic distribution and population stability goals were not yet satisfied. Regarding the recovery goal for piping plovers, the 2003 Amended BiOp stated that “[i]n 2001, the Missouri River exceeded this recovery goal for the first time. It was also exceeded in 2002 and 2003.” Based on this new information, it was rational for the FWS to conclude that the 2000 BiOp spring rise and summer low flow elements were not necessary to avoid jeopardy to the tern and plover, and to instruct the Corps to focus its resources on the mechanical construction of habitat, monitoring and adaptive management. American Rivers cites the lack of conclusive proof in the administrative record that the mechanically constructed sandbars will develop into an ecologically functional habitat for the plover and tern. American Rivers contends that, without such conclusive proof, the 2003 Amended BiOp RPA fails to satisfy the ESA § 7 requirement that the plan “insure” against jeopardy to the listed species. This argument fails because, while the proposed mitigation measures must insure against jeopardy to the protected species if they work as intended, while there must be a rational reason to expect them to work as intended, and while they must in fact be possible to implement, there is no requirement for the FWS to ensure the overall success of the plan. See Southwest Ctr. for Biological Diversity v. United States Bureau of Reclamation, 143 F.3d 515, 523-24 (9th Cir.1998). We also note that the 2003 Amended BiOp requires the Corps to monitor closely the performance of the mechanically constructed sandbar habitat and test methods of improving the mix of organic material in the sandbars. Finally, American Rivers cites its own experts for the contention that the higher-magnitude 2000 BiOp RPA spring rise would be more beneficial to the protected species than the default spring rise in the 2003 Amended BiOp RPA. We need not address that contention: [The FWS] was not required to pick the first reasonable alternative [it] came up with in formulating the RPA. [It] was not even required to pick the best alternative or the one that would most effectively protect the [species] from jeopardy. The [FWS] need only have adopted a final RPA which complied with the jeopardy standard and which could be implemented by the agency. Southwest Ctr. for Biological Diversity, 143 F.3d at 523 (quotation omitted). “Because there was a rational connection between the facts found in the [BiOp] and the choice made to adopt the final RPA, and because we must defer to the special expertise of the FWS in drafting RPAs that will sufficiently protect endangered species,” the decision to eliminate the 2000 BiOp flow changes from the 2003 Amended BiOp RPA for the plover and tern was not arbitrary and capricious. Id. We affirm the grant of summary judgment to the Federal Defendants on this claim. E. Selection of the Preferred Alternative in the EIS American Rivers argues that the Corps’ selection of the Preferred Alternative (“PA”) was arbitrary and capricious because the Corps did not sufficiently explain why the PA was superior to plan GP2021, favored by American Rivers. Plan GP2021 included the spring rise and summer low flow prescribed by the 2000 BiOp RPA, while the PA became the 2004 Master Manual. The EIS contains summary statements about the selection of the PA, such as: The Corps believes that the PA, when combined with the other measures ..., conserves more water in the upper three lakes during extended droughts, meets the needs of ESA-listed fish and wildlife species, is consistent with the Corps’ responsibilities under environmental laws and tribal trust responsibilities, and provides for the Congressionally authorized uses of the System. American Rivers argues that because plan GP2021 also generally meets those same criteria and outperforms the PA with respect to wildlife concerns, the Corps’ decision to select the PA has not been sufficiently explained. “[A]n agency must cogently explain why it has exercised its discretion in a given manner.” Motor Vehicle Mfrs., 463 U.S. at 48, 103 S.Ct. 2856. NEPA requires an agency to present the EIS alternatives in comparative form, “sharply defining the issues and providing a clear basis for choice among options by the decision-maker and the public.” 40 C.F.R. § 1502.14. In this case, the EIS included a detailed comparative analysis of the effects of all five alternatives on a wide range of interests including fish and wildlife resources, flood control, water supply, hydropower, recreation and navigation. This analysis, presented in a series of tables, enables the reader to compare the relative effectiveness of each of the alternatives, as required by NEPA. For example, the Federal Defendants point to tables showing the strong superiority of the PA over plan GP2021 in maximizing summer revenue from reservoir hydropower production while creating far less risk of disruption for downstream summer power generation. The tables also show that the PA outperforms plan GP2021 in the areas of navigation, groundwater damage and floodplain crop damage. “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.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Contrary to what American Rivers seems to suggest, there is no further NEPA or Administrative Procedure Act requirement to repackage the information in the summary tables into prose one-to-one comparisons of the PA with each of the other alternatives. We conclude that the comparisons provided in the EIS “cogently explain why [the Corps] has exercised its discretion in a given manner.” Motor Vehicle Mfrs., 463 U.S. at 48, 103 S.Ct. 2856. Therefore, we affirm the grant of summary judgment to the Federal Defendants on this claim. F. Claim of the Mandan, Hidasta and Arikara Nation Regarding the Management of Lake Saka-kawea The Nation claims that the Corps has failed to choose the FCA— and ESA-compliant reservoir management plan that best spurs economic self-sufficiency for the Nation’s members and protects the Nation’s cultural resources. The Nation seeks a court order to enjoin the Corps to correct these “deficiencies.” The MDL court dismissed the Nation’s claim for lack of Article III standing. To show Article III standing, a plaintiff must demonstrate (1) an “injury in fact” that is both “concrete and particularized” and “actual or imminent, not conjectural or hypothetical,” (2) “a causal connection between the injury and the conduct complained of,” and (3) a likelihood, as opposed to mere speculation, “that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quotations omitted). The Nation articulates its members’ general interest in the operation of Lake Sakakawea, including an interest in the economic health of the sport fishing industry located there. However, the Nation does not articulate how reservoir operations under the 2004 Master Manual cause an injury to the Nation that can be redressed by a favorable court decision. There is nothing in the amended complaint, for example, stating why reservoir operation under the 2004 Master Manual, which is more sensitive to reservoir recreation needs during prolonged droughts than was the 1979 Master Manual, will damage the viability of Lake Sakakawea’s sport-fishing industry. Furthermore, if we were to do exactly as the Nation requests in its amended complaint and order the Corps to re-formulate the 2004 Master Manual in a manner that, given FCA and ESA constraints, would best “spur Tribal self sufficiency and economic development and protect Indian trust assets,” it is not at all clear what outcome could be adjudged to comply with our order. The Nation simply has not set forth a “concrete and particularized” injury that is likely to be redressed by such an order. Lujan, 504 U.S. at 560-61,112 S.Ct. 2130. Therefore, we affirm the dismissal of this claim for lack of Article III standing. G. Extra-Record Materials Offered by American Rivers Nebraska challenges the submission of three declarations by American Rivers that were not part of the administrative record. The MDL court apparently considered Nebraska’s motions to strike these declarations to be moot. Because we affirm the grant of summary judgment to the Federal Defendants on American Rivers’ claims, we also find Nebraska’s motions to strike to be moot. III. CONCLUSION On the following three claims, we vacate the MDL court’s grant of summary judgment to the Federal Defendants and instruct the MDL court to dismiss without prejudice: (1) NPPD’s claim that the FWS failed to consider the economic feasibility of the summer low-flow requirement in developing the 2003 Amended BiOp; (2) Missouri’s claim that the loss of shallow water habitat for larval and juvenile pallid sturgeon in central Missouri resulting from summer low flow constitutes an impermissible “take” of the sturgeon under ESA § 9; and (3) Blaske Marine’s NEPA claim that a supplemental EIS is required for the 2003 Amended BiOp summer low-flow requirement. On all other claims, we affirm the judgment of the MDL court. . The Honorable Paul A. Magnuson, United States District Judge for the District of Minnesota. . The main stem dams and reservoirs are Fort Peck Dam (Fort Peck Lake) in Montana, Garrison Dam (Lake Sakakawea) in North Dakota, and Oahe Dam (Lake Oahe), Big Bend Dam (Lake Sharpe), Fort Randall Dam (Lake Francis Case) and Gavins Point Dam (Lewis and Clark Lake) in South Dakota. . The ESA prohibits "taking” of endangered species. "The term 'take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” ESA § 3(14), 16 U.S.C. § 1532(19). . A river’s "hydrograph” is the variation in water level at each point along its channel over the course of time. . The 2000 BiOp presented data from Corps models showing that, with the reservoirs and channel improvements in place, the "natural hydrograph" today would be expected to produce a spring rise of 80 Kefs (Kefs = thousand cubic feet per second) and a summer low flow of 10 Kefs at the Gavin’s Point Dam, the final reservoir release point into the lower river. Under the 1979 Master Manual, flow at that point was typically maintained steadily between 30-35 Kefs from March through November. The 2000 BiOp RPA called instead for a spring rise from Gavin’s Point totaling 50-55 Kefs to be implemented about once every three years, and an annual summer low flow of 25 Kefs, ramped down to 21 Kefs from mid-July through mid-August. The flow required for minimum support of downstream navigation is about 28.5 Kefs, depending upon the accompanying inflow from downstream tributaries. . Nebraska and NPPD argue that the Corps has attempted to evade judicial review under the Administrative Procedure Act by stating in a letter that it did not intend for the 2004 Master Manual to be considered a binding regulation. We established in Ubbelohde that the 1979 Master Manual was binding and subject to judicial review. 330 F.3d at 1027-30. The Corps has conceded, both in district court and in its briefs on appeal, that the 2004 Master Manual is still binding on the Corps and subject to judicial review. . The Corps states in- § 7-01 of the 2004 Master Manual that in the FCA, "Congress did not assign a priority to these purposes” of "flood control, navigation, irrigation, hydro-power, ... recreation, and fish and wildlife. ...” To the contrary, as we clearly stated in Ubbelohde, the FCA has been interpreted to hold flood control and navigation dominant and recreation, fish and wildlife secondary. Ubbelohde, 330 F.3d at 1019-20. If, due to extreme conditions, the Corps is faced in the future with the unhappy choice of abandoning flood control or navigation on the one hand or recreation, fish and wildlife on the other, the priorities established by the FCA would forbid the abandonment of flood control or navigation. While we hold today that the 2004 Master Manual does not "abandon” navigation, we do not rule out the possibility that some more limited degree of support for flood control or navigation in the future could be held to constitute "abandonment” of these dominant functions. See also infra note 9. . Appellee South Dakota also argues that the O'Mahoney-Millikin Amendment, 33 U.S.C. § 701-1 (b), prioritizes the retention of water in the reservoirs over downstream navigation. The MDL court granted summary judgment against South Dakota on this issue, and South Dakota did not appeal. We, therefore, construe South Dakota's argument in opposition to the appellant downstream parties to be that the O’Mahoney-Millikin Amendment would forbid, for the purposes of supporting navigation, any further lowering of the navigation-preclude volumes beyond those implemented in the 2004 Master Manual. Because we find against the appellant downstream parties on this issue on other grounds, we need not address appellee South Dakota's argument. . It follows that if future circumstances should arise in which ESA compliance would force the Corps to abandon the dominant FCA purposes of flood control or downstream navigation, the ESA would not apply. See supra note 7. . American Rivers has challenged the successful completion of the 1,200 acres in the MDL court. The MDL court dismissed the suit without prejudice for procedural reasons. That dismissal has been separately appealed to this Court, Docket No. 05-1200, and is still pending.

United States v. Hansen

PER CURIAM: Alfred R. Taylor, Christian A. Hansen, and Randall W. Hansen appeal their convictions for conspiracy to commit environmental crimes, violating the Clean Water Act, violating the Resource Conservation and Recovery Act, and violating the Comprehensive Environmental Response, Compensation, and Liability Act. On appeal, they each assert several alleged trial and sentencing errors. Finding no merit to their claims, we AFFIRM. I. BACKGROUND Christian Hansen (“Hansen”) founded the Hanlin Group (“Hanlin”) in 1972, and served as its President, Chief Executive Officer, and Chairman of the Board until early April 1993. R19-160. Hanlin operated an industrial plant in Brunswick, Georgia, as LCP Chemicals-Georgia (“LCP”), R21-41, and Hansen served as the plant manager for approximately two months in 1993. R19-166-67. Randall Hansen (“Randall”), Hansen’s son, was hired as an executive vice president in 1992. R21-193. He became Chief Executive Officer in April 1993 and served in that capacity until November 1993. R21-195. Alfred Taylor (“Taylor”) began working for LCP in 1979, and became the Brunswick operations manager in 1991. R21-243-44. He served as plant manager from February until July 1993. R21-244-45. Hanlin purchased the Brunswick plant in 1979. R21-41. The plant, which is on a site adjacent to tidal marshes and Purvis Creek, operated continuously year-round, manufacturing caustic soda, hydrogen gas, hydrochloric acid, and chlor-alkali bleach. About 150 people worked at the plant in two “cell buildings” or “cellrooms.” Each cellroom was about the size of a football field and contained fifty mercury “cells,” the units used to produce the bleach, soda, gas, and acid ultimately sold by LCP. R8-200-2. “The production process generated hazardous wastes, including elemental mercury, mercury-contaminated sludge (or ‘muds’), wastewater, chlorine contaminated wastewater, and extremely caustic wastes with high pH values.” Id. at 2-3; R16-112-14. The wastes were subject to various environmental regulations, including wastewater limitations on pH, mercury, and chlorine set forth in LCP’s National Pollutant Discharge Elimination System (“NPDES”), and to regulations of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6928(d)(2). LCP constructed a wastewater treatment system in 1989 and 1990, and was allowed, by NPDES permit, to discharge the treated wastewater into Purvis Creek. Although LCP represented that the system would have a continuous treatment capacity of 70 gallons per minute in the project description submitted to the Georgia EPD, Govt. Ex. 10-3b at SW5 00001807, the filtration and storage systems installed had a capacity of only 35 gallons per minute, R20-20-21; Govt. Ex. 1-12. LCP did not notify the Georgia EPD of the lower wastewater treatment capacity. R20-290. The plant was authorized to store wastewater which was awaiting treatment in the wastewater treatment plant on the floor of the eellrooms. R16-118; R21-145, 161. The eellrooms were constructed of concrete, with a downward slope which diverted the wastewaters to a sump and then to the wastewater treatment holding tanks. R19-33-34. If the cellroom became incapable of holding the wastewater, it leaked out onto the ground and accumulated in a lake. R16-131-32. LCP also used “Bunker C” oil tanks for additional wastewater storage. R19-291; R20-42-45. Due to accidental spills, bleach sometimes accumulated on the Cell-room 1 floor. R19-258. During the early 1990s, the maintenance at the plant began deteriorating. R20-177, 179. Replacement parts were not made available, and wastewater began accumulating around the plant. Id. The operations were subject to Occupational Safety and Health Administration (“OSHA”) regulations for the protection and safety of the employees. The workers exposed to mercury vapors in the mercury cell process were provided with liquids to drink in order to stay hydrated and deplete the mercury, and their exposure was periodically monitored through an extensive mercury urinalysis procedure. R20-145-46; R21-251-52. Employees who showed exposure to excess mercury were not allowed to return to work until they were seen by a medical physician, and were then relocated to other plant locations away from the mercury cells. R20-146, 164-65, 168-69, 174; R21-255, 258; R22-12, 24. In August 1992, OSHA inspected the plant “due to an employee complaint about safety hazards associated with water on cell room floors.” Govt. Ex. 10 — Yi. OSHA found this to be a “willful violation and demanded that no employees be allowed to work in contact with the water while the equipment was energized,” and “forced” LCP “to erect a boardwalk system above the water level around all the equipment until the water c[ould] be eliminated permanently.” Id. LCP added wooden elevated walkways in the cellrooms to prevent the workers from having contact with the water on the floor and to reduce the workers’ risk of electrical shock or chemical burns. R16-118; R21-145-46, 161. The chemicals used in LCP’s operations were very alkaline and caustic and could irritate and burn skin. R16-93; R19-43, 197; R20-188; R21-263-64. To minimize the workers’ risk of skin irritations and burns, LCP held routine safety meetings, encouraged and received safety inspections, and provided the employees with training, protective equipment to preclude skin contact, and first aid stations and showers to relieve inadvertent contact. R19-47, 194, 233-34, 246, 300-01; R20-170, 181-82, 186, 188, 190-91; R21-249. All employees, including those assigned to the cellrooms, were authorized to work elsewhere in the plant if they were concerned about their safety. R19-302; R20-186-87, 320-2; R21-156. In 1991, LCP’s parent corporation, Han-lin, filed a voluntary bankruptcy petition with pre-petition obligations exceeding $100 million. R19-119; R21-194. Shortly thereafter, Randall was hired as an executive vice president of LCP and charged with “developing the business and financial plans necessary to turn around the financial condition of the chemical business.” R21-193; R16-97. Randall worked closely with Hanlin’s bankruptcy attorneys, the law firm of McCarter and English, and the environmental law firm of Decher, Price and Rhoads. R19-140-43; R21-194, 215. Randall also worked closely with LCP’s corporate environmental manager and site environmental managers. R20-64-65; R21-210, 216. During the bankruptcy proceedings, available funds for maintenance, repair, and environmental compliance were restricted. R19-60-62. Randall attempted to find additional funds by selling excess equipment and reducing the payroll but the funds remained limited. Id. The ultimate decision-making for all major projects, capital and extraordinary expenditures, and the sale of assets, were subject to the approval of the Board and the bankruptcy creditor’s committee and court. R19-121, 143-47, 174-75; R21-196. Although funds were requested to address the cellrooms’ wastewater problem, the funds were usually not released. R21-259-60. In February 1992, the Brunswick plant manager, James L. Johns, advised Randall in writing that, without “extensive work,” to keep the wastewater treatment system operable, they would be unable to “operate the plan for more than a few days without ‘willfully’ violating EPD regulations which we will not do.” Govt. Ex. l-8a at HA 00024857. In April 1992, Randall visited the Brunswick plant and met with plant manager James L. Johns for “an update on regulatory compliance requirements.” Govt. Ex. 10-7b. He indicated that he would provide guidance on the approval of funds for a study for the NPDES permit, LCP’s commitment regarding the 1 June 1992 Georgia EPD deadline for eellroom floor repairs, and the possibility of a study or remediation plan for the “brine im-poundments.” Id. In June 1992, Randall was advised in writing that a conference with OSHA on 8 May 1992 noted 26 serious violations and 11 non-serious violations. Govt. Ex. 10-7d. During the summer of 1992, the Brunswick plant management changed. R16-104-05. In August 1992, Taylor advised Randall that Brunswick was “unable to meet current permit limitations,” that he anticipated “more restrictive” limitations, and that the “[performance of the waste water treatment system [was] a serious threat to the continued operation of the plant.” Govt. Ex. 1-12. Taylor said that while the “generation of waste water ha[d] greatly increased due to leaking brine tanks, [poor condition of the] brine pumps [and] ... brine filters, heavy rainfall, the necessity to destroy bleach, and numerous operating problems,” at the same time the capacity of the wastewater system was limited by the reduced capacity of the filtration and storage systems, was “further reduced” by the “[l]ack of maintenance,” and the system was “frequently shut down due to mechanical problems and operator errors.” Id. In November 1992, Randall visited the Brunswick plant to interview a candidate for plant manager, and spoke with the acting manager, Hugh Croom. R19-30. At that time, Croom advised Randall of problems with the caustic filters and the intentional dumping of caustic on the eellroom floors by some unknown employee. R19-30-31, 56-58. Croom testified that Randall “was just as concerned as we were about the problems” and authorized Croom to hire a task force. R19-50, 58. In February 1993, LCP offered the plant manager job to Taylor. R21-244. During his tenure as manager, Taylor stressed safety and strict adherence with LCP’s training and safety programs, and assured employees the right to refuse to perform any activity if the employee felt it to be unsafe. R19-302-03. When the wastewater overran the cellroom berms and streamed outside the building, the overflow was reported to the EPD and to the LCP Board by letters signed by Taylor. R20-25-27. The amounts reported in the letters were consistent with the data that the plant had at that time. R20-27. During the spring of 1993, Taylor attended a company meeting with Randall and Croom in which they discussed the condition of the Brunswick plant and possible solutions. R19-18-19. Taylor and Croom recommended “either shutting the plant down or shutting it down long enough to salvage one cellroom and rebuild the second cellroom, and then starting back up with just one cellroom.” R19-20, 22. Taylor worked up “the figures and costs” and submitted it to Randall, but Randall later advised them that “[t]hey won’t let me do it.” R19-22-23, 64. By letters to EPD, Taylor reported that the plant had exceeded the maximum daily allowable discharges seventeen times, and explained that the discharges were due to “heavy rainfall,” “miscommunication between operations supervision,” “a slight miscalculation,” and “storm, rainfall and process leaks.” Govt. Ex. 10 — Id, e.g. Taylor noted that the “waste water treatment operating efficiency and outfall discharge” was “positively] affect[ed]” by LCP’s decision not to replace a leaking brine tank. Govt. Ex. 10-lg. In April 1993, the Board of Directors, with the approval of the bankruptcy court, removed Hansen as Chairman, President, and CEO of Hanlin after he attempted to expel the outside directors from the board. R19-122-23, 160, 167-68. The Board and the bankruptcy creditors’ committee asked Randall to serve as LCP’s interim CEO and Chief Operating Officer [COO]. R19-160; R21-195, 200. His primary focus was financial and, with the support of the bankruptcy creditors committee and court, he sought to sell the company to a responsible party who could operate the business and have the financial resources to deal with the various environmental conditions. R19-147-48, 164, 174-76; R21-200-01, 219. In this capacity, Randall received daily reports concerning the Brunswick plant’s operations and problems. R16-97-98. After Hansen’s removal as CEO, he was no longer a corporate officer and became a director and employee. R19-136, 160, 168. Sometime later, the Board sent Hansen to Brunswick to help run the plant. R19-166-67. Taylor reported five discharge violations in April, and indicated that two violations were due to a problem in the wastewater treatment system that had been corrected, one violation was attributable to rainfall, and one violation was due to leaks which had been repaired. Govt. Ex. 10-lh. Taylor indicated that “[a]n upset in the wastewater treatment system caused a release of ineffectively treated wastewater” but that “the discharge was rerouted until the system resumed normal operation.” Id. Taylor reported 16 discharge deviations in May 1993, which he indicated were caused by an equipment failure which had been repaired, “overloading the wastewa-ter treatment system,” and rainfall. Govt. Ex. 10 — li. In June, Taylor reported 21 excessive discharges which were attributable to “upsets” and “operational problems” in the wastewater treatment system and equipment failures. Govt. Ex. 10 — lj and 10-lk. Hansen visited the plant in late June and began working with Taylor. R19-167. In July 1993, Taylor resigned as plant manager. R21-245. Upon Taylor’s resignation, Hansen assumed the running of the plant and served as plant manager from July through September 1993. R19-24, 167; R20-354. Taylor subsequently returned to the plant as a full time employee as a process or project engineer on the condition that he not have to “assume managerial type duties.” R21-246. He remained involved in environmental issues, however, and in October 1993, questioned the assistant production manager regarding the loss of mercury. R20-325, 337-38. The Georgia Environmental Protection' Division notified LCP in writing in June 1993 that it proposed revoking the NPDES permit to discharge treated wastewater in Purvis Creek based on “continuous violations ... since May 1992 of pH, total residual chlorine, and mercury.” Govt. Ex. 13-ld at 1. It explained that, although it had provided LCP “Notice of Violation” letters twice in 1992 and had requested that LCP “take all necessary measures to come into compliance,” “these violations have continued” and “significant noncompliance” was documented in 10 out of 13 months from May 1992 through May 1993. Id. The notification summarized that there had been “no progress ... in upgrading the plant or its operation” since the noncompliance had begun to be a serious problem. Id. at 2; R20-274-276. Randall submitted formal written comments on the revocation stating that “LCP has already taken steps to improve the situation by installing additional filter capacity, repairing or replacing equipment and reducing the load on the system” and referring to a 23 July plan addressing future corrective measures. Govt. Ex. 10-6 at 4. In July and August 1993, Hansen directed the plant employees to begin pumping the wastes into the large “bunker” tanks that had once been used to store oil although he knew that the wastewater mixed with oil could not be run through the wastewater treatment system, R20-48, 183, 328-29, 350. The plant environmental/safety manager reported the use of the tanks to Randall in July. Govt. Ex. 10-7x. After the EPD moved to revoke the plant’s permit, Hansen advised the employees to “increase the flow on the wastewater treatment system to a level that was to keep the water from running out the [cellroom] door” and into the lake. R20-358-59. During their respective terms as plant manager, Hansen and Taylor were advised of and observed “water [ ] flowing] out the back door of the cellroom” as a result of a break in the cellroom berms, and “overflow[ing] on the ground.” R20-327-28, 335-36, 341. The employees complained to Hansen, Taylor, and Randall about “the water condition, the deterioration of the plant with the pipes, the leaks, and the safety equipment,” and, despite assurances that conditions would improve “[a]s soon as [the plant] g[o]t some money,” the plant did not get “any money” and conditions did not change. R21-146-50. The NPDES permit was revoked on 23 September 1993. R20-275. LCP filed an appeal which stayed the revocation. R20-275. Although EPD sought a temporary restraining order, it was denied by the state court judge. R20-302-03. During this same period of time, Allied Signal and HoltraChem indicated interest as buyers, and a financial agreement was worked out in which Allied Signal would provide needed money, personnel, and raw materials or maintenance parts for the plant, including an extra wastewater treatment facility. R9-228, Exs. A & B; R19-149-51; R20-18, 80. As a part of the financial agreement, Allied Signal loaned employee Mark White to LCP to serve as plant manager in October 1993. R19-152-53; R20-18. With the influx of Allied Signal’s resources, conditions at the plant improved. R20-80. The purchase agreement eventually fell through and shortly thereafter the facility closed. After the plant closed, Randall, through the bankruptcy counsel, requested $1,500,000 in additional funds from the bankruptcy court to deal with the environmental impact of closing but the request was denied. R9-228, Ex. C at 2, 7, Feb. 8, 1994, letter from M. Patrick M. Nuciarone. The Georgia EPD turned the closed plant over to the U.S. Environmental Protection Agency (EPA) for cleanup and EPA estimated that the cleanup will cost more than $50 million. R20-380; R21-57. Taylor, as one of the ten LCP employees approved by the EPA to participate in the site cleanup, assisted in the decommissioning of the cellrooms and ran the water treatment plant built by the EPA. R21-55-56. The cleanup was paid for by the government and Hanlin’s predecessors at the site: Allied Signal (successor to Allied Chemical), ARCO, and Georgia-Power Company. R21-39-40. The government indicted Christian Hansen, Randall Hansen, Douglas Brent Hanson, and Alfred R. Taylor for conspiracy to commit environmental crimes at the site between 1 July 1985, and 1 February 1994, 18 U.S.C. § 371, (Count 1), and various substantive crimes. Rl-1-1. The charges included: violating the Clean Water Act (“CWA”), 33 U.S.C. § 1319(c)(2)(A) and 18 U.S.C. § 2, by exceeding the NPDES permit between June 1993 and January 1994 (Counts 2-21); violating the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6928(d)(2)(A) and (e), and 18 U.S.C. § 2, by storing wastewa-ter on the cellroom floor and permitting some to escape into the environment between 29 May 1993 and 1 February 1994 (Counts 22-32), storing wastewater in the Bunker “C” tanks between 23 July 1993 and 1 February 1994 (Count 33), and knowingly endangering employees by exposing them to impermissibly stored wastes and wastewaters between 29 May 1993 and 1 February 1994 (Count 34); violating the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9603(b)(3), by failing to notify the U.S. government of unpermitted releases of chlorine or waste-water into the environment between 21 July and 23 October 1993 (Counts 35-41); and violating the Endangered Species Act, 16 U.S.C. § 1538(a)(1)(B), 1538(g), and 1540(b)(1), by taking an endangered species, a Wood Stork, as a result of discharging mercury into the marsh, Purvis Creek, and the Turtle River (Count 42). Rl-1. Hansen was charged with Counts 1-42, Randall was charged with Counts 1-34 and 42, Hansen was charged with Counts 1-6, 10-22, 24, 26-32, and 34-42, and Taylor was charged with Counts 1-32, and 34-42. Id. Hanson, the former environmental and health and safety LCP manager, pled guilty to a CERCLA offense (Count 41) and the offense under the Endangered Species Act (Count 42) and testified against Hansen, Randall, and Taylor. R3-83; R20-6. At the conclusion of the defendants’ case, the district judge granted their motion for acquittal as to Count 42 but denied the motion as to all other charges. R6-123. Hansen was convicted of all counts, Randall was convicted of all charged counts, and Taylor was convicted of Counts 1-3, 10-11, 22-26, 29-32, 34-35, and 38-41. R22-214-15. Their renewed motions for acquittal and motions for judgment notwithstanding the verdict and/or for a new trial were denied. R7-145, 146, 153-54,163; R8-200. Hansen was sentenced to 108 months of imprisonment, a fine of $20,000, a special assessment of $2,050, and two years of supervised release. R8-214. Randall was sentenced to 46 months of imprisonment, a fine of $20,000, a special assessment of $1,700, and two years of supervised release. R9-236. ■ Taylor was sentenced to 78 months of imprisonment, a special assessment of $1,000, and two years of supervised release. R8-215. Each defendant appealed, and was allowed to remain on bond pending appeal. R8-219, 221; R19-226, 238^40. On appeal, Hansen raises four issues: (1) the district court erred in admitting the government’s expert witness testimony; (2) the district court’s instructions misstated the reasonable doubt standard, improperly applied the concept of reasonable corporate officer, improperly defined the elements of knowing endangerment, and effectively eliminated the mens rea requirement from each statutory violation; (3) the evidence was insufficient to support his convictions; and (4) the district court erred in concluding that it lacked the authority to depart from the applicable sentencing guidelines. Randall argues that: (1) district court erred by not granting his motion for judgment of acquittal because the evidence was insufficient to support his conviction for knowing endangerment under the RCRA and the government never proved causation on counts 2-33; (2) the district court’s instructions were erroneous on the elements of the charged substantive offenses and on the responsible corporate officer instruction as an alternative basis for criminal liability; (3) the district court erroneously admitted high prejudicially and irrelevant evidence; and (4) the district court erred by declining to depart downward. Taylor maintains that the district court erred: (1) by not granting his motion for judgment of acquittal and for a new trial based on insufficiency of the evidence; (2) in its instruction concerning the wastewater treatment system; and (3) in sentencing him. II. DISCUSSION A. Admission of Expert Witness Testimony Hansen argues that the district court erred in admitting testimony from government expert witness Daniel Teitelbaum because the government failed to disclose Teitelbaum’s checkered history of credibility and the court failed to conduct a hearing regarding the testimony. Hansen also maintains that the district court erred in admitting the testimony of Teitelbaum and government expert witness Christopher Reh because the testimony was unreliable, irrelevant, and highly prejudicial. The government responds that Hansen waived the arguments regarding Teitelbaum’s testimony by failing to object to the testimony at trial. The week before trial, Hansen moved for a Daubert hearing and to ex-elude the testimony of expert witnesses regarding certain allegedly scientific conclusions and exhibits. R4-94-95; R6-110-1. Noting that the motion was directed to the expert testimony regarding the effect of high mercury levels on endangered species as charged in Count 42, the district court denied it, finding that the motion did “not identif[y] the source, the substance, or most importantly the underlying metN odology of this testimony” and that, therefore, there was “no underlying methodology or reasoning for the court to assess.” R6-110-1-2, 4. During the trial, Teitelbaum confirmed that he had previously testified as an expert witness, and explained that “it has been a regular portion of [his] practice over the years.” R20-230-31. Hansen neither objected nor examined Teitelbaum after the government moved to tender Teitelbaum as' an expert, and the court directed that the jury consider him an expert in his field. Id. at 232. Teitelbaum testified regarding the plant employees’ potential exposure to hazardous substances. Based on his review of “the large number of biological samples,” “many interviews,” the “documents concerning the health and hygiene program,” and other documents, he found “a substantial amount of spillage of sodium hydroxide,” “numerous chlorine leaks,” and spills and leaks of hydrochloric acid at the plant. R20-233-35; see also 248-49. He noted that, because the sodium hydroxide spillage had a very high pH and was quite caustic, contact with the spillage could cause a first- to third-degree burn, or even be lethal. Id. at 233-34. Teitelbaum explained that exposure to the chlorine leaks could cause “severe injuries to eyes, upper airways, and lungs, and, under some circumstances, death.” Id. at 234. He commented that hydrochloric acid was a “classic poison” which would also cause burns and potential death. Id. at 234-35. Based on the biological samples, he concluded that the employees were “in danger of death or serious bodily injury.” Id. at 244-45, 248. Finally, Teitelbaum noted that the data showed the mercury levels in the workers’ urine were “between two and five times the acceptable level of excretion, based on the World Health Organization or the NIOSH recommendations.” Id. at 244 — 45. No objections were raised to his testimony. Id. at 232-63. At sentencing, the probation officer noted that he had “discredit[ed]” one of Hansen’s witnesses “because he was not even at the LCP Plant” and “did not have firsthand knowledge to see this.” R13-26. Hansen’s attorney responded that, based on the probation officer’s theory, Teitel-baum’s testimony should also be discounted “because he never went to the plant before it was shut down.” Id. at 28. The district judge commented that Teitelbaum “made a very credible witness. I think the best witness that the Government had.” Id. at 29. We review for abuse of discretion both the district court’s decisions regarding the admission of expert testimony and reliability of an expert, Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 1176, 143 L.Ed.2d 238 (1999), and the denial of a Daubert hearing, United States v. Nichols, 169 F.3d 1255, 1263 (10th Cir.1999). “Absent an objection, we can review the challenged evidence only for plain error.” Christopher v. Cutter Labs., 53 F.3d 1184, 1192 (11th Cir.1995). Scientific expert testimony is admissible if “(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.” City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir.1998). In Daubert, the Supreme Court suggested a flexible inquiry regarding the methodology considering such factors as “whether it can be (and has been) tested,” whether it “has been subjected to peer review and publication,” the “known or potential rate of error,” “the existence and maintenance of standards controlling the technique’s operation, and the degree it is accepted as reliable within the relevant scientific community.” 509 U.S. at 591, 593-94, 113 S.Ct. at 2795-96. Daubert hearings are not required, but may be helpful in “complicated cases involving multiple expert witnesses.” City of Tuscaloosa, 158 F.3d at 564-65 n. 21. A district court should conduct a Daubert inquiry when the opposing party’s motion for a hearing is supported by “conflicting medical literature and expert testimony.” Tanner v. Westbrook, 174 F.3d 542, 546 (5th Cir.1999). Consistent with Daubert, the evidence must be scientifically related to the disputed facts at issue in the case. Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir.1999). Hansen’s motion for a Daubert hearing was neither addressed to the charges to which Teitelbaum testified, or his testimony in general, nor supported by the source, substance, or methodology of the challenged testimony. Hansen failed to object to either Teitelbaum’s qualification as an expert or his testimony during trial. Teitelbaum’s testimony was based on his review of biological samples, interviews, and documents, and assisted the trier of fact in understanding the potential injuries that could result from the conditions at the plant. The district judge did not abuse his discretion by denying the motion or by admitting the testimony. To the extent that Hansen raises a Brady claim that the government suppressed exculpatory or impeachment evidence by failing to disclose Teitelbaum’s “checkered” past, we find that it is without basis. In order to state such a claim, a defendant must show (1) “that the government possessed evidence favorable to the defendant (including impeachment evidence) ...; (2) that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence ...; (3) that the prosecution suppressed the favorable evidence ...; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.” United States v. Meros, 866 F.2d 1304, 1308 (11th Cir.1989) (per curiam). In this case, the evidence which Hansen alleges the government failed to disclose consists of court opinions either disregarding or discrediting Teitelbaum’s testimony. Although Hansen argues that the government knew of this discredited testimony based on Teitelbaum’s previous testimony for the government, Hansen fails to show that the government was in actual possession of the information or actually suppressed it. Further, the information was available to Hansen through reasonable diligence both before and during the trial. The cases were all available through legal research and information on them could have been, but was not, addressed during Teitelbaum’s testimony. Finally, the cases relied on by Hansen all relate to Teitelbaum’s testimony in tort actions as to causation of a specific injury. They do not, therefore, have probative value as to his testimony regarding potential health effects of the chemicals or the employees’ risk of death or serious injury after exposure to these chemicals. Hansen is unable to show a reasonable probability that the information would have changed the outcome of the proceedings. Christopher Reh, an employee of the National Institute for Occupational Safety and Health (“NIOSH”), also testified for the government. R20-192. The district judge qualified him as an expert in the field of industrial hygiene. Id. at 194. Reh explained that he was assigned to the Brunswick plant as the project officer after NIOSH received “a valid request for a health hazard evaluation” from one of the plant’s unions in 1987. Id. at 196. He said that, during the initial site visit, he and his team met with Taylor, a plant engineer, and a few union representatives to discuss the request. Id. at 196-98. They visited the plant, and observed “mercury in many places on the cellroom floor in cracks or crevices,” and passively monitored mercury exposure in the workers’ “breathing zone.” Id. at 198-99. They found that the plant was not using the creatnine monitoring scale, but was reporting mercury levels by “micrograms per liter.” Id. at 204. The monitors found that mercury exposure exceeded the NIOSH and OSHA recommended levels. Taylor’s objection to further testimony from Reh on the grounds of relevance was overruled. Id. at 201. Reh and his team advised Taylor of their findings by letter and recommended use of creatnine correction urine mercury monitoring which would indicate the amount of mercury per gram of creatnine. Id. at 201-03; Govt. Ex. 40-lb. From the results of the first visit, the team made a second visit to conduct a more in-depth study in 1988. R20-202. During the second visit, the team used an active sampling method to determine 28 workers’ breathing zone exposure levels, collected urine samples from 58 workers, and administered questionnaires to and conducted physical examinations of 65 workers. Id. at 205-07. Taylor was provided with a written interim report in 1988 and a final report in 1991, both of which showed that workers had mercury levels above recommended standards. Id. at 207-08, 210, 214; Govt. Exs. 40-1c and Id. The government offered Reh’s testimony to show that the workers were placed “in imminent danger of death or serious bodily injury” and that Hansen, Randall, and Taylor were aware of the workers’ exposure to hazardous substances. This testimony supports both of those propositions. The district court did not abuse its discretion by admitting the testimony of Reh. B. Insufficiency of the Evidence We review the denial of a motion for a new trial for abuse of discretion, and the denial of a motion for judgment of acquittal de novo. United States v. Pistone, 177 F.3d 957, 958 (11th Cir.1999) (per curiam). To uphold the denial of a motion for judgment of acquittal, we “need only determine that a reasonable fact-finder could conclude that the evidence established the defendant’s guilt beyond a reasonable doubt.” Id. When considering the sufficiency of the evidence, we “view the facts and draw all reasonable inferences therefrom in the light most favorable to the government.” United States v. Slocum, 708 F.2d 587, 594 (11th Cir.1983). 1. Position of authority “To prove aiding and abetting, the government must demonstrate that a substantive offense was committed, that the defendant associated himself with the criminal venture, and that he committed some act which furthered the crime.” United States v. Hamblin, 911 F.2d 551, 557 (11th Cir.1990). “[T]he government must show that the defendant shared the same unlawful intent as the actual perpetrator” but does not need to prove that “the defendant was present at the scene when the crime occurred, or that he was an active participant.” Id. at 557-58; United States v. Pepe, 747 F.2d 632, 665 (11th Cir.1984) (“aider and abettor ... need not even be present”). “Encouraging” a violation and “discouraging” the reporting of the violation, United States v. Sinskey, 119 F.3d 712, 718 (8th Cir.1997), and “personally attempting to avoid [a violation’s] detection by the [RCRA] -inspectors,” United States v. Self, 2 F.3d 1071, 1089 (10th Cir.1993), have been held sufficient to show that a defendant aided and abetted the commission of a crime. The indictment alleged that the defendants, “after learning that the Brunswick facility was disposing of hazardous wastes ... without a RCRA permit, continued to operate the Brunswick facility in such a manner as to continue the disposal of these hazardous wastes without expending adequate funds ... to prevent the disposal of such hazardous wastes into the environment.” Rl-1-11. The jury was instructed that the defendants were responsible for the acts of others that they “wilfully directed,” “authorized,” or aided and abetted by “willfully joining together with [another] person in the commission of a crime.” R22-181. The district court denied Taylor’s motion to acquit or for a new trial on these charges finding that “the Defendants worked for LCP in positions of responsibility and authority while ... the violations took place.” R8-200-23. a. Hansen Hansen maintains that the evidence failed to show that he was in a position of authority after he was deposed as CEO in April 1993 until he began serving as plant manager on 16 July 1993, and after he was officially replaced as plant manager by Allied employee Mark White on 18 October 1993. Therefore, he contends that the district court erred in not granting his motion for judgment of acquittal as to the 18 counts that occurred after 18 October 1993 (Counts 6-9, 14-15, 19-21, 23, 25, 29, 30-32, 38^=0), the two counts that occurred between April and July 1993 (Counts 2 and 10), and the count that arose on 22 October 1993 (Count 33). The testimony at trial indicated that Hansen was aware that wastewater was permitted to flow out the cellroom back door in June 1993, and directed the use of the old Bunker C storage tanks for storage of wastewater, including the inadequately treated wastewater from the treatment system, from July through September 1993. Although the acts continued after Hansen left his decision-making position, the acts occurred at his direction. This evidence was sufficient for the jury to reasonably conclude beyond a reasonable doubt that his acts were in furtherance of the violations. The district court did not err in denying Hansen’s motion for judgment of acquittal or motion for new trial. b. Randall Randall claims that the government presented no evidence that he personally treated, stored, or disposed of a hazardous waste, personally effected a CWA violation, or instructed an agent to do so. He maintains that, under the laws of bankruptcy and corporate governance, he lacked the authority to close the plant or to allocate the funds for the needed capital improvements. He contends that LCP needed the bankruptcy court’s approval to use the bankruptcy estate’s assets, or to obtain a new debt, to perform the needed repairs at the Brunswick plant. In February 1994, LCP applied to the bankruptcy court for the funds “to shutdown” the plant and for new equipment, but the motion was denied. Def. Randall Ex. 1, Amended Notice of Motion at 5; R9-228, Ex. C and 8 Feb letter. Hanlin Board of Directors member James Mathis testified that Randall was responsible for “run[ning] the day-to-day operations of the company” once he became the interim CEO and COO. R19-160. He said that the Board was “very interested in whether the environmental problems-whether we were in a position of compliance with the environmental regulations. But the information that we had indicated that, really, compliance was not a problem.” Id. at 164. He explained that, as a result of the weekly reports on the plant’s operations, the Board believed that “there were really no excursions of any significance going on”. Id. at 165. Mathis said that Randall “had the primary responsibility” for providing information regarding the environmental compliance issues to the Board and that Hansen fed “information to Randall in that regard.” Id. at 166. He agreed that the decision to sell the plant would have been a board decision requiring the approval of the bankruptcy court. Id. at 174-75. LCP, as a debtor in possession, could “use the property of the estate in the ordinary course of business,” but needed court approval to “use, sell, or lease, other than in the ordinary course of business, property of the estate.” 11 U.S.C. § 363(c)(1) and (b)(1). It could “obtain unsecured credit ... in the ordinary course of business,” but needed court approval “to obtain unsecured credit or to incur unsecured debt other than” “in the ordinary course of business.” Id. at 364(a) and (b). Bankruptcy does not insulate a debtor from environmental regulatory statutes. In reviewing an injunction to clean up a hazardous waste site, the Supreme Court commented: [W]e do not suggest that [the debtor’s] discharge [in bankruptcy] will shield him from prosecution for having violated the environmental laws ... or for criminal contempt for not performing his obligations under the injunction prior to bankruptcy.... [W]e do not hold that the injunction ... against any conduct that will contribute to the pollution of the site or the State’s wasters is dis-chargeable in bankruptcy ... Finally, we do not question that anyone in possession of the site ... must comply with the environmental laws .... Plainly, that person or firm may not maintain a nuisance, pollute the waters of the State, or refuse to remove the source of such conditions. Ohio v. Kovacs, 469 U.S. 274, 284-85, 105 S.Ct. 705, 710-11, 83 L.Ed.2d 649 (1985). See also Midlantic Nat’l Bank v. New Jersey Dept. of Envtl. Protection, 474 U.S. 494, 507, 106 S.Ct. 755, 762 (1986) (A bankrupt debtor in possession “may not abandon property in contravention of a ... regulation that is reasonably designed to protect the public health or safety from identified hazards.”). Although Randall claims that his role as Executive Vice-President and acting CEO was limited to financial matters, he also received daily reports about the plant’s operations and environmental problems, R16-97-98, R21, 359, wrote and received memos regarding specific plant operational problems, Govt. Ex. 104, l-6f, l-8a, 1-12, received monthly written environmental reports, Govt. Ex. 10-lo-10-lnn, 10-7c-7d, 10-7f, and oral environmental reports, R21-64, 359. He admitted that Hanlin’s bankruptcy was not an excuse for violating environmental laws. R21-219-21. There is no indication that he asked the Hanlin Board or the bankruptcy court to close the plant. The evidence indicates that he apparently misled them into believing that environmental compliance was not a problem. After the Georgia EPD attempted to revoke the plant’s NPDES permit in June 1993, Randall contested the revocation, explaining that the plant’s CWA violations were due to a lightning strike and equipment failures, and asserted that “LCP has already taken steps to improve the situation.” Govt. Ex. 10-6. This evidence was sufficient for the jury to conclude that Randall actions were in furtherance of the violations. c. Taylor Taylor argues that he should not be held responsible for the environmental violations that occurred after he resigned as plant manager, specifically counts 2-3, 25, 29-32, 38-41. Taylor resigned as plant manager on 16 July 1993, R21-245, but returned shortly thereafter as a project engineer and continued in that position until the plant closed, R21-246-47, 317-18. As project engineer, Taylor was directly involved in responding to the plant’s environmental and safety problems and, at Hansen’s request, developed a list of short-term solutions to the problems with estimated costs. R20-338; R21-247-48. Taylor’s proposed solutions were subsequently funded. R21-247-48. Although Taylor left his managerial position, he continued to work in a position in which he directed or authorized acts of the employees on environmental and safety problems. Testimony at trial indicated that, in October 1993, Taylor was aware of the wastewater overflow from the cell-rooms, the excess loss of mercury, and the use of the tank cars for wastewater storage, and that he supervised the release of the overflow. This evidence was sufficient for the jury to conclude beyond a reasonable doubt that these acts were in furtherance of the violations. The district court did not err in denying his motion for a new trial. 2. Hazardous substances or materials Taylor and Hansen argue that the government failed to prove that the untreated wastewater contained enough mercury and caustic to meet the environmental laws’ definition of hazardous substances or materials, or that the untreated wastewater was improperly stored. a. Hazardous substances as defined OSHA chemist Clinton Leroy Merrell testified that samples which were submitted from LCP on 9 September 1992 tested as containing 8 to 30 parts per ■million of mercury, and six to ten-percent caustic, with a pH of 14. R21-163, 165-67; Govt Exs. 45-6, 45-9. Former LCP plant manager Hugh Leroy Croom testified that, in January 1993, the untreated wastewater may have had “a high pH, and ... some mercury,” but would not have contained mercury sludge. R16-91, 131-32. He said that the pH could be high enough to be a danger “at times” but that it did not stay high and varied according to the spills. Id. at 132; R19-35-36. However, he testified that muds containing mercury and caustic were washed onto the cellroom floors every three or four days when the treatment system’s filters were back washed. R16-127-28; R19-103. When asked whether the wastewater on the cell-room floors would be considered a hazardous waste, Croom responded “[m]ost of the time, probably it was.” R16-112-13; see also id. at 128 (Croom admitted that wastes on the cellroom floor were listed as hazardous wastes). Dr. Teitelbaum testified that a fall and submersion into caustic soda with a pH of 14 would cause a third-degree burn over the entire body with a likelihood of death. R20-241-42. LCP former employee Duane Carver testified that, some time between 1987 and 1993, he stepped into the cellroom sump hole and went in up to his waist. R19-226-28. He knew that the pH was “pretty high” because he quickly felt it. Id. at 228. He showered and was able to get most of it off so that he “didn’t get burned all the way” and did not seek medical attention. Id. at 229-30, 251. Environmental Protection Agency regulatory expert Paul Peronaud explained the hazardous waste classifications to the jury, R21-11-13, and the jury was instructed as to various types of hazardous wastes, R22-199-200. The Waste Water Treatment Operators Logs for the periods of the indictment showed that the wastewater often contained more than 200 parts per billion of mercury. Govt. Exs. 4, 5, 6-1. Former LCP employee Dunn testified that Taylor directed the employees to “put a sign up” labeling the wastewater in the rail cars as “[h]azardous waste materials.” R20-345. Taylor testified that the pH of the plant’s wastewater was normally between seven and ten, and in concentration of eight to ten percent. R21-262, 264. A “hazardous waste” is defined as a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may— (A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. 42 U.S.C. § 6903(5). Hazardous wastes are categorized as either “listed” hazardous substances or “characteristic” hazardous substances. 40 C.F.R. § 261.3(a); R21-11-15. The “characteristic” hazardous substances are not per se hazardous but may be classified as hazardous if, because of a mixture with a hazardous substance, testing proves that the substance exhibits characteristics of hazardous waste. 40 C.F.R. §§ 261.3(a)(2)(i) and 261.20(a). Characteristics of hazardous waste include ignitability, corrosivity, reactivity, and toxicity. 40 C.F.R. §§ 261.21, 261.22, 261.23, and 261.24. Wastewater containing mercury is classified as a characteristic hazardous substance when the water contains 200 parts per billion or more of mercury. Id. at § 261.24(a), Table. “Wastewater treatment sludge from the mercury cell process in chlorine production” is listed as hazardous waste K106. Id. at § 261.32. Wastewater containing caustic is classified as a characteristic hazardous substance when the water “has a pH less than or equal to 2 or greater than or equal to 12.5.” Id. at § 261.22(a)(1). Once solid wastes are mixed with sludge or caustic, they are defined as hazardous. Id. at § 261.3(a)(2)(iv). Where there is no sampling of the actual wastes, the government may prove the hazardous nature of the material by inventories, hazardous waste logs, internal memoranda, and trial testimony. United States v. Baytank (Houston), Inc., 934 F.2d 599, 614 (5th Cir.1991). The government is not required to prove that material is hazardous by EPA testing. United States v. Self, 2 F.3d 1071, 1086 (10th Cir.1993). We find that the testimony of the former LCP employees and the wastewater logs were sufficient for the jury to find that the untreated wastewater contained enough mercury and caustic to meet the environmental laws’ definition of hazardous substances or materials. b. Storage of hazardous materials. Taylor and Hansen maintain that the accumulation of wastewater on the cell-room floors did not violate federal law because the wastewaters were not stored there for the statutory requisite of 90 days. Croom testified that hazardous wastewater was on the cellroom floors “[a]t times,” R16-114, and that hazardous materials were shipped, turned over, or treated within 90 days, R19-41. In response to a question as to whether waste-water on the cellroom floors was a regular occurrence in 1992, he responded that it was in both cellrooms in 1992, but when he left “it was just mostly in # 2.” R16-114. Former LCP employee Roger Cooper testified that on 28 June 1993, although wastewater was pumped to the railcars for storage from cellroom two, the cellroom one floor was dry. R19-275-76, 281-82; Govt. Ex. 6-1. He explained that they “tried to keep [the wastewater in cellroom one] pumped over to #2 cellroom” because of the possibility that water would escape from cellroom one as a result of cracks in its floor. R19-284-85. Dirt dikes were constructed in the cellrooms to prevent the wastewater from leaking, but the dikes were frequently breached. R19-256; R25-26. The cellrooms were often “full of water” so that the employees had to wade into standing wastewater to repair the pumps. R20-318; R19-205. Hazardous waste generators are permitted to “accumulate hazardous waste on-site for 90 days or less without a permit” if “the waste is placed” in tanks visibly marked with “[t]he date upon which each period of accumulation begins” and clearly labeled as “Hazardous Waste.” 40 C.F.R. § 262.34(a)(1)(h), (2), and (3). A “tank” is “a stationary device, designed to contain an accumulation of hazardous waste which is constructed primarily of non-earthen materials ... which provide structural support.” 40 C.F.R. § 260.10. There was no evidence that suggested that the cellrooms, in which earthen berms were constructed to contain the wastewa-ter, were marked with the date of accumulation or labeled as containing hazardous wastes and thus qualified as “tanks.” The testimony and logs indicate that the waste-water, which may have abated in cellroom one during various periods of time, remained in cellroom two and was present for more than 90 days. Therefore, the evidence was sufficient for the jury to find that the wastewater was improperly stored. 3. Knowing Endangerment Under RCRA Hansen, Randall, and Taylor argue that the evidence was insufficient to convict them for knowing endangerment. They acknowledge that the government may have shown that they “could have been aware” of the inherent dangers of working in a chlor-alkali plant, but argue that it failed to show that they knew and had an actual belief that the conduct which allegedly violated the environmental laws was substantially certain to cause death or serious bodily injury to others. Specifically, they maintain that, while the evidence showed that the employees were exposed to mercury, the evidence did not show that they were endangered due to any RCRA violation. They contend that the evidence of the employees’ exposure to caustic was not sufficient to support the conviction for knowing endangerment. They claim that the government did not show that they had actual knowledge that their conduct in causing the RCRA violation was at that time substantially certain to place the employees in imminent danger of death or serious bodily injury. They also posit that there was no evidence that they were participants in any alleged conspiracy. For a conviction of knowing endangerment under the RCRA, the government must prove that the defendants knowingly caused the illegal treatment, storage, or disposal of hazardous wastes while knowing that such conduct placed others in imminent danger of death or serious injury. 42 U.S.C. § 6928(e). A defendant acts “knowingly” “if he is aware or believes that his conduct is substantially certain to cause danger of death or serious bodily injury.” Id. at 6928(f)(1)(C). The defendant must have possessed “actual awareness or actual belief.” Id. at 6928(f)(2)(A). Circumstantial evidence, “including evidence that the defendant took affirmative steps to shield himself from relevant information,” may be used to prove the defendant’s awareness or belief. Id. The knowing endangerment statute was drafted to “assure to the extent possible that persons are not prosecuted or convicted unjustly for making difficult business judgments where such judgments are made without the necessary scienter” “however dire may be the danger in fact created.” S. Rep. 96-172, at 37-38 (1979), reprinted, in 1980 U.S.C.C.A.N. 5019, 5036-38. The penalties imposed by the knowing endangerment section were “designed for the occasional case where the defendant’s knowing conduct shows that his respect for human life is utterly lacking and it is merely fortuitous that his conduct may not have caused a disaster.” Id. at 38, 1980 U.S.C.C.A.N. at 5038. We have held that “[t]he government need only prove that a defendant had knowledge of the general hazardous character of the chemical” and knew “that the chemicals have the potential to be harmful to others or to the environment.” United States v. Goldsmith, 978 F.2d 643, 645-646 (11th Cir.1992) (per curiam) (internal quotations and citation omitted). “[W]hile knowledge of prior illegal activity is not conclusive as to whether a defendant possessed the requisite knowledge of later illegal activity, it most certainly provides circumstantial evidence of the defendant’s later knowledge from which the jury may draw the necessary inference.” Self, 2 F.3d at 1088. The statute defines “serious bodily injury” as “(A) bodily injury which involves a substantial risk of death; (B) unconsciousness; (C) extreme physical pain; (D) protracted and obvious disfigurement; or (E) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.” 42 U.S.C. § 6928(f)(6). A condition which may cause one of the statutorily defined conditions is sufficient to show “serious bodily injury.” See United States v. Protex Industries, Inc., 874 F.2d 740, 743 (10th Cir.1989) (finding that a serious bodily injury was suffered by employees who contracted psy-choorganic syndrome which may cause a mental faculties impairment). a. The Evidence of Endangerment Former LCP employees testified that they suffered serious skin and respiratory conditions from the wastewater on the cellroom floors. A November 1992 memorandum from Taylor to Randall showed Taylor’s concern for needed repairs “to avert severe safety and environmental problems.” Govt. Ex. 1-5. The urinalysis testing on employees showed “an increase” in the number with mercury levels which exceeded the 150 action level from 1986 to 1993. R21-294-96. Taylor admitted that most of the employees in the cellroom were removed to other plant locations “before any medical condition occurred” but said that he did not see any “reason to draw any correlation between” the rise in the number of employees exposed to excess mercury and the dumping of hazardous wastes and mercury. Id. at 294, 296. Expert testimony and reports linked exposure to mercury and caustic to a variety of serious health problems. The National Institute for Occupational Safety and Health (NIOSH) report on sodium hydroxide caustic indicated that local contact with caustic could result in “extensive damage to tissues, with resultant blindness, cutaneous burns, and perforations of the alimentary tract,” with potential for development of “squamous cell carcinomas.” Govt. Ex. 17-7b. The NIOSH report on inorganic mercury warned of the effects of mercury and mercury vapors to the central nervous system. Govt. Ex. 17-7c. Dr. Teitelbaum testified that exposure to caustic could cause burns ranging from first- to third-degree and could be lethal, and that exposure to mercury could cause mild tremors, personality changes, some detectable neurological abnormalities, changes in kidney function to severe kidney damage with potential death, and immune system problems. R20-229, 239-42. Dr. Teitelbaum opined that the employees were “in danger of death or serious bodily injury.” R20-248. The evidence was sufficient for the jury to find that the defendants placed others in danger of death or serious bodily injury. b. The Evidence of Mens Rea The evidence showed that Hansen, Randall, and Taylor knew that the conditions of the plant were dangerous and that the conditions posed a serious danger to the employees. LCP former employee Wilbur Duane Outhwaite testified that he voiced his opposition to the use of the Bunker “C” storage with Hansen, and that Hansen responded that it was “his decision to make, and he decided to use them.” R20-350. LCP acting plant manager Hugh Croom discussed his concerns regarding the dangerous conditions in the cellroom and the danger to the employees with Randall. R16-129-30. Croom and LCP former employee Outhwaite testified that Randall received daily reports from the plant managers concerning plant operations and “safety problems.” R16-97-98; R20-359, 374. Randall was aware of the water on the cellroom floor and “wouldn’t say that [he] wasn’t unaware of the hazard,” but thought that the walkway was “an acceptable resolution” to “eliminating the hazard to the employees while we worked to dry the cellroom floor.” R21-224-25. He conceded that he was aware that the company was cited for willful violation of OSHA safety regulations as a result of water on cellroom floors. Id. at 225; Govt. Ex. 10-7L Jesse Jones, a former LCP employee and a union representative, met with Randall to discuss the employees’ safety issues, and Randall promised the needed repairs. R21-148. He said that he discussed the safety concerns, specifically “the water condition, the deterioration of the plant with the pipes, the leaks, and the safety equipment ]” with Hansen and Taylor. Id. at 146. Between 3 August 1993, and 4 February 1994, Randall was sent 22 reports listing 110 different violations of the NPDES standards. Govt. Exs. 10-lo-10-lnn. As LCP’s environmental manager, Brent Hanson regularly advised Randall of the plant’s environmental problems “[wjhenever he was interested in things” and by monthly reports. R20-64-65. As early as 1988, NIOSH informed Taylor that the plant employees had “extremely high” levels of mercury in their bodies which created “an unacceptably high potential for health effects,” and that the mercury-contaminated wastes should be kept in vapor-proof containers. Govt Ex. 40-lc at 2. Despite this, the employees’ exposure to high levels of mercury continued. In 1992, Taylor addressed his concerns about “severe safety” problems in a memorandum to Randall. Govt. Ex. 1-5. Taylor was aware that, during the spring of 1993, 23 cellroom employees were removed from their duty in the cellrooms due to their high levels of mercury and that the mercury level in the workplace increased. R21-294-95, 297. Taylor was aware of and concerned by the mercury-contaminated waste which was stored in drums in the cellrooms’ basement and which was emitting elevated levels of mercury fumes. Id. at 298-303. He admitted that the mercury-contaminated mud on the cellroom floors posed a health risk and needed to be monitored. Id. at 301-02. He testified that, on occasion, he would get into the water wearing protective equipment to make repairs and improvements to the pumps, and admitted that, if the wastewater got onto bare skin and was caustic, “you would start to feel a little burning or a little heat sensation” but that it could be neutralized by washing with the safety solution. Id. at 263-64. He said that such burns were “not unusual” in a caustic soda manufacturing plant through employee carelessness and equipment failures. Id. at 264. c. Consent to the Risks The RCRA knowing endangerment provision can be affirmatively defended if “the conduct charged was consented to by the person endangered and that the danger and conduct charged were reasonably foreseeable hazards of — (A) an occupation, a business, or a profession.” 42 U.S.C. § 6928(f)(3). The evidence showed that the plant’s environmental violations seriously endangered the employees and were not typical to chlor-alkali plants. Hugh Croom, the plant manager for the LCP chlor-alkali plant in North Carolina, testified that the dangerous conditions in the Brunswick plant were not present in the North Carolina plant because the North Carolina plant had adequate waste treatment equipment and facility maintenance. R16-108-09, 127-29; R19-32-34, 52, 107-09. 110-11. He said that he discussed his concerns regarding the environmental issues, the wastewater treatment system issues, and the dangers to the employees with Randall and with Taylor. R16-129-30. LCP environmental manager Brent Hanson noted that, although covering mercury with water to limit mercury vapors was an accepted practice within the chlor-alkali industry, it was usually practiced “in a little more confined manner” than the condition of the cellrooms, it was not an industry practice to allow such quantities of mercury to accumulate on the cellroom floors, and he knew of no other chlor-alkali plants that permitted such a condition to exist. R20-145, 153. Dr. Teitelbaum testified that, although he did not think that “you can get a zero risk” in a chlor-alkali plant, he thought “you can make chlor-alkali plants safe so that workers under everyday conditions are extremely unlikely to be hurt.” R20-245. The employees also did not freely consent to conditions at the plant. They complained to management, including Hansen, Randall, and Taylor, about the dangerous working conditions, and refused to work in the cellrooms. Union representative and former plant employee Jesse Jones testified that LCP suspended nine employees who refused to “go underneath the cell-room to repair the pump” because of the wastewater on the cellroom floor. R21-138-42. Jones said that he discussed his concerns about the working conditions with Hansen, Randall, and Taylor. R21-138-39, 146-48. Former employee Larry Barwick said that he complained “to whoever would listen,” including the LCP management, about the fumes and visible mercury in the cell buildings. R20-319-20. He refused to go into the cellrooms, and was once sent home for the day based on his refusal. R20-321. The evidence, therefore, was sufficient to show that the defendants knew that the plant’s violations of the CWA and RCRA violations were inevitable, that the plant was incapable of complying with environmental standards, and that the employees were endangered while working within this environment without consenting to the risk. 4. Conspiracy Hansen, Randall, and Taylor argue that the district court erred by not granting their motions for acquittal because the government never proved a conspiracy. They maintain there was no showing of an agreement between them, the operation of the plant was a legal act, and they did not pursue the objectives of the conspiracy. Randall suggests that the evidence showed that he took affirmative steps to improve compliance. Taylor contends that he was not involved in the operations at the Brunswick plant for a significant period of the “conspiracy” and authored several memos to management expressing his concerns regarding the plant’s operation once he began working there. He maintains that, after assuming the plant manager position, he recommended shutting down the plant or at least one of the cellrooms and, when those recommendations were rejected, he spent several months seeking money for maintenance. He also argues that the evidence showed that he directed that the reports be truthful and accurate. To obtain a conviction under 18 U.S.C. § 371, “the government must show: ‘(1) the existence of an agreement to achieve an unlawful objective; (2) the defendant’s knowing and voluntary participation in the conspiracy; and (3) the commission of an overt act in furtherance of the conspiracy.’ ” United States v. Harmas, 974 F.2d 1262, 1267 (11th Cir.1992) (quoting United States v. Cure, 804 F.2d 625, 628-30 (11th Cir.1986)). “An agreement may be proved by either direct or circumstantial evidence and a common scheme or plan may be inferred from the conduct of the participants or from other circumstances.” United States v. Diaz, 190 F.3d 1247, 1254 (11th Cir.1999). However, it is “essential” “that the object of the agreement must be illegal.” United States v. Toler, 144 F.3d 1423, 1426 (11th Cir.1998). “Each party to a continuing conspiracy may be vicariously liable for substantive criminal offenses committed by a co-conspirator during the course and in the furtherance of the conspiracy, notwithstanding the party’s non-participation in the offenses or lack of knowledge thereof.” United States v. Mothersill, 87 F.3d 1214, 1218 (11th Cir.1996) (citing Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946)). In the usual Pinkerton case, it is not necessary for the court to inquire into a particular conspirator’s individual culpability, “so long as the substantive crime was a reasonably foreseeable consequence of the conspiracy.” United States v. Alvarez, 755 F.2d 830, 849-50 (11th Cir.1985). It is unnecessary for the government to prove that each conspirator participated in all aspects of a conspiracy, knew each phase or every detail of the conspiracy, or knew all of the participants. United States v. Pedrick, 181 F.3d 1264, 1272 (11th Cir.1999). A conspirator may be convicted if he “participates in some affirmative conduct designed to aid the success of the venture with knowledge that h[is] actions would further the venture.” Id. A defendant may be convicted of conspiracy if he joined the conspiracy after its inception and played only a minor role within it, United States v. Knowles, 66 F.3d 1146, 1155 (11th Cir.1995), and he is presumed to be a part of the conspiracy until all conspiracy activity ceases or he proves that he withdrew. United States v. LeQuire, 943 F.2d 1554, 1563-64 (11th Cir.1991). To show withdrawal, a conspirator must show that he “has taken affirmative steps to defeat the objectives of the conspiracy,” and “made a reasonable effort to communicate these acts to his co-conspirators or disclosed the scheme to law enforcement officers.” Id. at 1564. The indictment charged that, from July 1985 to 1 February 1994, Hansen, Randall, and Taylor “did knowingly and willfully combine, conspire, confederate and agree together and with others” to knowingly act in violation of the environmental laws by “continu[ing] to operate the Brunswick facility” after learning that they were in violation, storing and disposing of hazardous wastes without a permit, and submitting “incomplete, inaccurate, and misleading information” in their reports to the various state and federal regulatory agencies. Rl-1-10-14. The evidence showed that the defendants admitted to sharing the common goal to operate the plant until a buyer could be found. The jury could infer from this goal and the defendants’ knowledge of the plant’s continuing problems with worker safety and environmental compliance that they reached a tacit agreement to operate the plant in violation of environmental laws. The defendants knew of the violations from either personal observation or from information that they received from the plant employees, and frequently communicated with each other regarding operation of the plant despite the continuous environmental concerns. The defendants failed to provide the corporate board with information about the violations, and failed to accurately present the plant’s inability to comply with the regulations to the Georgia EPD. Each of the substantive offenses were foreseeable consequences of the agreement to continue operating the plant in violation of the environmental statutes. 5. Knowledge of the Substantive Offenses Randall argues that the district court erred in denying his motion for acquittal because the government failed to show that he had the requisite “knowledge” of the CWA and RCRA violations on the specific dates when they occurred. He contends that his knowledge after the violations had occurred was. not sufficient. The statutes for the violations under which Randall was indicted contain explicit knowledge requirements. For a conviction under 33 U.S.C. § 1319(d)(2)(A), the defendant must be shown to have “knowingly” violated various sections of the CWA or permit conditions or limitations. For a conviction under 42 U.S.C. § 6928(d)(2)(A), the defendant must be shown to have “knowingly” treated, stored, or disposed of an identified hazardous waste without a permit. We have held that the knowledge element is satisfied where a defendant, who may not have “directly” caused a hazardous waste violation but had “approved of previous dumpings as a way to meet storage squeezes,” “effectively ordered” a subsequent violation when he instructed a subordinate to “handle” hazardous waste. United States v. Greer, 850 F.2d 1447, 1451-52 (11th Cir.1988). Here, although Randall did not directly cause the violations, he knew that the plant was violating its permit on an almost daily basis, accumulating wastes that it could not treat, and was frequently releasing the wastes from the cellrooms as needed to keep the plant operational. He received 22 written reports between 8 August 1993 and 4 February 1994 advising him of a total of 110 different violations of the NPDES permit. He received frequent and sometimes daily oral and written reports from the various plant managers of the plant’s operations and safety concerns. He knew that the plant was incapable of complying with the environmental standards and knew that the violations were inevitable. We conclude that the evidence that Randall permitted the plant employees to process the hazardous wastes as they had in the past despite his knowledge that the procedures were in violation of environmental regulations was sufficient to show that Randall acted “knowingly.” C. Jury Instructions Hansen, Randall, and Taylor argue that the district court’s jury instructions misstated the reasonable doubt standard, improperly applied the concept of responsible corporate officer, improperly defined the elements of knowing endangerment, and effectively eliminated the mens rea requirement from each of these statutory violations. Hansen contends that the instructions essentially instructed the jury that they could convict him because of his job title. “ We review jury instructions de novo to determine whether they misstate the law or mislead the jury to the prejudice of the objecting party.’ ” United States v. Grigsby, 111 F.3d 806, 814 (11th Cir.1997), quoting United States v. Chandler, 996 F.2d 1073, 1085 (11th Cir.1993). We review the district court’s denial of a requested instruction for abuse of discretion, because a defendant is entitled to an instruction on a defense theory if it has some basis in the evidence and is supported by law. Grigsby, 111 F.3d at 814. A defendant cannot challenge a jury instruction on a ground not raised at trial unless he establishes “plain error” under Fed.R.Crim.P. 52(b). United States v. Meester, 762 F.2d 867, 879-80 (11th Cir.1985). If the requirements of Rule 52(b) are satisfied and the instruction was made in error, is plain, and affected substantial rights, we “may then exercise [our] discretion to notice a forfeited error, ... only if ... the error seriously affectfed] the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 466-68, 117 S.Ct. 1544, 1548-49, 137 L.Ed.2d 718 (1997) (internal citations omitted). Under the invited error doctrine, we will generally not review an error induced or invited by a party through the submission of an incorrect jury instruction to the judge which passed on to the jury. United States v. Stone, 139 F.3d 822, 838 (11th Cir.1998) (per curiam). 1. Reasonable Doubt Standard Hansen and Randall maintain that the district judge misstated the essential basis of the convictions by instructing that the government did not have to prove guilt beyond a reasonable doubt. In his introduction to the jury instructions, the district judge advised the jury that he would read them the jury charge and would provide them each a copy of the charge for them to “refer to it at any time you think is appropriate” when they were sent out to deliberate. R22-172. The district judge then orally instructed the jury on reasonable doubt as follows: So the Government always has the burden of proving a Defendant guilty beyond a reasonable doubt. If it fails to do so, under your oath, you would have to find that Defendant not guilty. But while the Government’s burden is a heavy burden, it is not necessary that the Defendant’s guilt be proved beyond a reasonable doubt, because that is generally impossible. The law does not require a mathematical certainty, only the exclusion of any reasonable doubt concerning that Defendant’s guilt. In that regard, a “reasonable doubt” is defined as a real doubt, based upon reason and common sense after a careful and impartial consideration of the entire evidence in this case, or the lack of evidence. Proof beyond a reasonable doubt, in other words, is proof of such a convincing character that you would be willing to rely or act upon it without hesitation in a decision involving the most important of your affairs. But you take a common sense view.... You may not find a Defendant guilty unless you find that the inferences you draw from the evidence are consistent with the theory of his guilt and inconsistent with reasonable theories of innocence. If you are convinced that a Defendant has been proved guilty beyond a reasonable doubt, say so with a verdict of guilty. On the contrary, if you have reasonable doubt, then under your oath, you would have to find that Defendant not guilty. R22-174-75 (emphasis added). No objection was made as to this instruction. R22-206-09. The passage, as provided to the jury in the written charge, read: Thus, while the Government’s burden of proof is a strict or heavy burden, it is not necessary that a Defendant’s guilt be proved beyond all possible doubt. It is only required that the Government’s proof exclude any “reasonable doubt” concerning a Defendant’s guilt. R6-133-2. “[W]e consider [a reasonable doubt] instruction as a whole to determine if the instruction misleads the jury as to the government’s burden of proof.” Harvell v. Nagle, 58 F.3d 1541, 1542 (11th Cir.1995). The jury must be instructed that defendant’s guilt must be proved by the government “beyond a reasonable doubt” on each element of the charged offense, but the trial court is not required to define reasonable doubt. Id. If the trial court defines reasonable doubt, the standard must be explained correctly. Id. A district court’s failure to submit an element of the offense to the jury, including an erroneous instruction on reasonable doubt, is a structural error which defies the harmless-error analysis. Johnson, 520 U.S. at 468-69, 117 S.Ct. 1544 at 1549-50, 137 L.Ed.2d 718. Although we have held that “an inadequate reasonable doubt instruction cannot be cured by other circumstances at trial,” Nutter v. White, 39 F.3d 1154, 1158 (11th Cir.1994) (reversing a conviction in which the instruction defined reasonable doubt using the phrase “substantial doubt”), “[j]ury instructions are not considered in isolation; rather we view them in the context of the entire ... proceeding.” Waters v. Thomas, 46 F.3d 1506, 1524 (11th Cir.1995). Here, the improper passage is immediately prefaced and followed by a correct instruction, and the correct instruction was included in the written copy provided to each juror. The judge stated the correct instruction numerous times, including each element of each offense to be proven. See R22-172, 173, 182, 185, 187,189, 193-94, 199-201. The instruction, as written and as provided to the jury, was not inadequate and presented the correct reasonable doubt standard. Viewing this instruction as a whole and in the context of the entire proceeding, we find that it did not mislead the jury as to the reasonable doubt standard. See United States v. Torres, 901 F.2d 205, 243 (2nd Cir.1990) (rejecting a challenge to the language used in one sentence of a reasonable doubt standard where a correct instruction was provided “immediately after” the challenged language and provided at least five times in the instructions in general and as to the specific offenses); but see Bloomer v. United States, 162 F.3d 187, 189, 194 (2nd Cir.1998) (finding an improper reasonable doubt instruction constitutionally deficient despite at least 17 proper instructions where there was no curative instruction to alert the jury to disregard the incorrect instruction.) 2. Reasonable Corporate Officer Hansen and Randall contend that the district judge undermined the jury’s fact-finding function by directing that they treat the defendants as “responsible corporate officers” (“RCO”). They maintain that the instruction as given permitted the jury to convict them on the basis of their corporate positions instead of their individual liability. They suggest that the district court’s separate RCO instruction allowed the jury to believe that it applied equally to the conspiracy, CWA and RCRA charges. The district judge instructed the jury: Under the federal Clean Water Act, the definition of a “person” specifically includes corporations and individual corporate officers. You are instructed that the Defendants, Christian Hansen, Randall Hansen, and Alfred Taylor are persons for purposes of the Clean Water Act. R22-191. Taylor’s attorney objected that “[t]he statute says, ‘... and responsible corporate officers.’ ” R22-209. The district judge then explained “[w]herever I have used the term ‘corporate officers,’ I mean responsible corporate officers.” Id. In a CWA case, “the term ‘person’ means ... any responsible corporate officer.” 33 U.S.C. § 1319(c)(6). The RCRA counts require proof that each defendant “knew” of the violations’ potential for harm and danger. 42 U.S.C. § 6928(e). In United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35 (1st Cir.1991), the First Circuit vacated a conviction under 42 U.S.C. § 6928(d)(1) after finding that the district court’s instruction, which relied on the RCO doctrine in part and which instructed “that the officer must have known or believed that the illegal activity of the type alleged occurred” incorrectly permitted a finding of guilt without a determination that the defendant possessed actual knowledge of the specific violation. Id. at 51. The First Circuit reasoned that the RCO doctrine was inapplicable where the defendant was charged under a statute that required explicit knowledge. Id. at 51-55. The Ninth Circuit has held that: [Ujnder the CWA, a person is a “responsible corporate officer” if the person has authority to exercise control over the corporation’s activity that is causing the discharges. There is no requirement that the officer in fact exercise such authority or that the corporation expressly vest a duty in the officer to oversee the activity. United States v. Iverson, 162 F.3d 1015, 1025 (9th Cir.1998). Explaining that “[t]he relevant inquiry is whether the instructions as a whole are misleading or inadequate,” the Ninth Circuit rejected the defendant’s argument that the RCO “instruction allowed the jury to convict him without finding a violation of the CWA.” Id. at 1026. The district judge had stated the elements needed for the government’s proof and told the jury that the CWA “ ‘also holds accountable’ ” RCOs. Id. The Ninth Circuit found the instructions not erroneous, reasoning that “the [RCO] instruction relieved the government only of having to prove that defendant personally discharged or caused the discharge of a pollutant” and that “[t]he government still had to prove that the discharges violated the law and that defendant knew that the discharges were pollutants.” Id. We find this issue meritless. The clarifying instruction given by the district court was requested by the defendants. The district court’s instruction on responsible corporate officer was not given as to the CWA counts, Counts 2-21, but was given only as to Counts 22-34. 3. Knowing Endangerment Hansen argues that the instructions authorized the jury to convict him of knowing endangerment without making a determination that he knew of an imminent danger. Hansen requested that the instruction include the “element of knowingly” on “each element of the offense” to insure that the jury understood that the charges were related to “individual, personal, knowing, knowledgeable, deliberate conduct.” R22-53-55. The district judge noted that the preface to the instructions included “knowingly” and agreed that he would add an instruction that “[t]he term knowingly is applicable to each element of the offense.”^ Id. at 54, 56. Hansen’s attorney responded “[t]hat would help, Judge.” Id. at 56. Later, the government requested that the instructions for “willful” be limited to count 1 and that the instructions for “knowingly” apply to the remaining counts. Id. at 70-71. Hansen’s attorney stated that he “strongly disagree[d],”but the judge indicated that he would permit the instruction, as clarified, to stand. Id. at 71. At the end of the charge conference, Hansen’s attorney renewed his objection to the district judge’s failure to give the knowing instruction as to each offense. Id. at 206-07. Because the instruction required that the jury find that Hansen knew that the violations could cause imminent danger, this argument is meritless. 4. Mens Rea Requirement Hansen argues that the instructions permitted the jury to convict him of the RCRA violations without making factual findings that he had knowledge of the RCRA elements of hazardous materials, permit regulations, and the treatment, storage, or disposal of hazardous wastes. He maintains that the instruction reinforced the government’s position that Hansen should be convicted because LCP was his company, and not based on the legally required relationship between Hansen and the violations. During the charge conference, Randall’s attorney objected to an instruction as to Counts 22-34, arguing that it should be limited to Counts 22-33, because Count 34 had additional elements. R22-59-63, 65-66. He asked that an instruction be added limiting liability to knowledge possessed by the defendant himself, and the district judge responded “[a]ll right. All right. We will add that.”. Id. at 61. During closing argument, the government stated: Chris Hansen is a hands-on manager. You heard discussions of how he ran the plant. I would submit it was probably his way or the highway. Does anybody doubt he would have known what was going on at every place in the plant? He was there. He ordered the Bunker C tanks to be filled. R22-99-100. The district judge explained that: a person acts knowingly if he acts intentionally and voluntarily, realizing what he is doing, and not because of ignorance, mistake, accident, or carelessness. Whether a Defendant acted knowingly may be proven by the Defendant’s conduct and by all of the facts and circumstances surrounding the case. Id. at 188. Addressing the RCRA counts, the district judge instructed: Each count charges the ... Defendants, all of them, unlawfully treated, stored, or disposed of one or more hazardous wastes without the required permits. Now in order to prove a Defendant guilty of those charges, the prosecution must establish the following essential elements: First, that on or about the date charged in Counts 22 through 34, the Defendant under consideration knowingly treated, stored, or disposed of one or more of the solid wastes listed in those counts; Next, that such solid wastes were listed or identified under RCRA as hazardous wastes; and Third, that the wastes were treated, stored or disposed of at a location which did not have either interim status or a RCRA permit authorizing the treatment, storage or disposal of such wastes. Id. at 192. The district judge also charged that “the Government must prove beyond a reasonable doubt that the Defendant under consideration knew that substances involved in the alleged offenses had the potential to harm others or the environment.” Id. at 193. The district judge continued: Now each Defendant may be found guilty of Counts 22 through 34 of the Indictment if you find that the Government has proven the following beyond a reasonable doubt: First, that the Defendant under consideration had a responsible relationship to the violation-that is, that it occurred under his area of authority and supervisory responsibility; Second, that the Defendant had the power or the capacity to prevent the violation; and Third, that the Defendant acted knowingly in failing to prevent, detect or correct the violation. Id. at 200-01. Randall’s counsel renewed the objection that the instruction as to Count 34 was erroneously included because it could not be based on constructive knowledge. Id. at 207. We have held that a defendant’s “knowledge [as to whether a site has a permit or the disposal of hazardous waste] does not require certainty, and the jurors may draw inferences from all of the circumstances, including the existence of the regulatory scheme.” United States v. Hayes Int’l Corp., 786 F.2d 1499, 1505 (11th Cir.1986) (reviewing a conviction under 42 U.S.C. § 6928(d)(1)). As to Count 34, RCRA’s knowing endangerment provision also requires proof that the hazardous waste violation placed persons in “imminent danger of death or serious bodily injury” and that the defendant had knowledge of that danger. 42 U.S.C. § 6928(e). Because the instructions clearly set forth that a finding of “acted knowingly” was required for a conviction, there was no error in the instruction. 5. Wastewater Treatment System Hansen contends that the instructions allowed the jury to convict him under the CERCLA release offenses without a finding that he knew the quantity of the materials released or was meaningfully in charge at the time of the release. Taylor argues that, because the instruction failed to include the definition of “tank,” it allowed the jury to consider the cellroom as a part of the wastewater treatment system. In his request for a charge as to Counts 35 through 40, Hansen asked that the jury be instructed that it could not convict him unless he was the person in charge at the time of the release and knew that the released hazardous materials exceeded the applicable reportable quantity. R4-98, Request to Charge No. 23. The district judge instructed the jury: Now Counts 35 through 41 charge the Defendants, Mr. Christian Hansen and Mr. Taylor with violations of the Comprehensive Environmental Response, Compensation, and Liability Act, which is known by the acronym CERCLA, which requires the immediate reporting of the release of a reportable quantity of a hazardous substance into the environment. To establish a violation of this Act, as alleged in Counts 35 through 41, the Government must prove the following elements beyond a reasonable doubt as to each Defendant: First, that the Defendant was one of the “persons in charge” of a facility; With respect to Counts 35 to 40, that a reportable quantity of mercury contaminated wastewater-that is, more than one pound of wastewater contaminated with mercury and other hazardous substances-was released into the environment within a 24 hour period; As to count 41, that a reportable quantity of chlorine-that is, in excess of 10 pounds-was released into the environment within a 24 hour period; and That the Defendant under consideration failed to notify immediately the National Response Center of the release of such materials as soon as he had knowledge of the release. CERCLA’s reporting requirements are not extended to all employees involved in a release. The reporting requirements apply to any person-even if of relatively low rank-who was in a position to detect, prevent, and abate a release of the hazardous substances. A “person in charge’s” control over a facility need not be sole or exclusive. There may be several “persons in charge” of the same facility. It is only necessary that the individual have or share such control of the facility where the release occurred. R22-201-02. In clarifying the definition of “operator” under CERCLA, the Supreme Court instructs that “an operator is simply someone who directs the workings of, manages, or conducts the affairs of a facility ... specifically related to pollution, that is operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations.” United States v. Bestfoods, 524 U.S. 51, 66-67, 118 S.Ct. 1876, 1887, 141 L.Ed.2d 43 (1998). The district court’s instructions required that the jury find that the defendant under consideration knew of the release and knew that the release contained hazardous waste, and failed to report it. There is no indication in the record that Taylor requested an instruction on the definition of “tank.” Hansen requested an instruction on the existence of the wastewater treatment exemption to the 90-day labeling and disposal period. R22-68-69. The judge subsequently included such an instruction: Tanks which aré part of a wastewater treatment system that is subject to regulation under the CWA need not have a RCRA permit so long as they are used for the treatment of wastewater. Therefore, wastewater which is being held temporarily in such tanks is not subject to these RCRA permitting requirements. Id. at 199. A “tank” is defined by the regulations as “a stationary device, designed to contain an accumulation of hazardous waste which is constructed primarily of non-earthen materials (e.g. wood, concrete, steel, plastic) which provide structural support.” 40 C.F.R. § 260.10. Although Taylor maintains that the instruction would have helped the jury understand that the cell-room was a tank and part of the wastewa-ter system, the evidence showed that the berms, used in the cellroom to contain the wastewater, were constructed of dirt. R19-256. Taylor neither requested a definition of “tank” in the instructions nor was prejudiced by the failure to of the court to provide it. D. Sentencing Guidelines We review the district court’s factual findings for clear error and its application of the law to those facts de novo. United States v. Quinn, 123 F.3d 1415, 1424 (11th Cir.1997). 1. Downward Departure a. Christian Hansen Hansen argues that the district court erred by concluding that it lacked the authority to depart under U.S.S.G. § 5K2.0. He maintains that, at a minimum, the district court was ambiguous as to whether it believed that it had the authority to grant a downward departure and that any ambiguity must be resolved in his favor. At sentencing, Hansen argued, inter alia, that he should be granted a downward departure pursuant to U.S.S.G. § 5K2.0 because the factors of the case took it outside of the heartland of cases to which the guidelines apply. R13-5-8. He argued that a departure was warranted because the government agencies monitored and knew of the environmental violations, and that this situation was not where Congress intended to impose the high penalties for environmental violations. Id. at 6. After sentencing Hansen, the district judge stated that he “d[id] not really find any actual basis for a departure from the guidelines, even though I might, if I had discretion, found otherwise.” Id. at 52. We “generally may not review the merits of a district court’s refusal to grant a downward departure, [but] may conduct a de novo review of a defendant’s claim that the district court mistakenly believed it lacked the authority to grant such a departure.” United States v. Mignott, 184 F.3d 1288, 1290 (11th Cir.1999) (per curiam). Where the district court expresses ambivalence about its authority to depart from the guidelines, we review the record to determine the district court’s understanding. See United States v. Webb, 139 F.3d 1390, 1394-95 (11th Cir.1998) (noting that “our independent review of the sentencing transcript reveals that the sentencing judge, at the very least, was bewildered and ambivalent as to whether the guidelines authorized a downward departure” and that “on balance, ... the record more strongly suggests that the court believed that it was not authorized to depart downward.”). If there is no indication that the district court misapprehended its authority, “we assume that the sentencing court understood it had authority to depart downward.” United States v. Chase, 174 F.3d 1193, 1195 (11th Cir.1999). Hansen was sentenced after Randall. During Randall’s sentencing hearing, the district judge acknowledged his authority to depart. R9-9. Hansen’s sentencing transcript shows that the district judge permitted extensive discussion of whether the circumstances of Hansen’s case were outside the heartland of cases to which the guidelines had been applied, and that neither party argued that the district court lacked the authority to depart downward. There is nothing in the record that shows that the district court misapprehended its authority to depart downward. Therefore, we assume the sentencing court understood its discretionary authority to grant a downward departure but decided not tp exercise that authority. Id. at 1195. Because the district court understood that it had the authority to depart, we are unable to review the district court’s denial of Hansen’s request for a downward departure. b. Randall Hansen Randall contends that the district court erred in not granting his requests for a downward departure under §§ 5K2.0 and under 5K2.11. As to a departure under § 5K2.0, he argues that his case fell outside the heartland of other environmental prosecutions and that he was at all times operating under the authority of the U.S. Bankruptcy Court and upon the advice of his environmental counsel. As to a departure under § 5K2.11, he maintains that the district court erred in concluding that financial factors were not a “perceived greater harm” which could trigger a departure and in not understanding that the record supported his belief that a greater environmental, as well as economic, harm would occur at the site and in the community if the plant failed to remain operational. At Randall’s sentencing, the district judge stated: [T]he Court acknowledges that it does have authority to depart from the guidelines pursuant to [§§ 5K2.0 and 5K2.11] if it finds that the circumstances of this case warrant such a departure. R9-9. He set forth the requirements for a departure under the guidelines, but found that no departure was warranted under either provision. We may not review a district court’s refusal to grant a downward departure unless the court mistakenly believed that it lacked the authority to grant such a departure. Mignott, 184 F.3d at 1290. Despite Randall’s argument to the contrary, the district judge indicated his understanding that financial factors could be a “perceived greater harm” by weighing the harms associated with closing the plant and putting 300 employees out of work against keeping the plant open as an unsafe chor-alkali plant and keeping the employees working, but found that the financial factors were not a harm greater than the harms associated with the operation of an unsafe chlor-alkali plant. R14-9-11. Because the district court acknowledged that it had the authority to depart, we lack the jurisdiction to review the decision. c. Taylor Taylor also argues that the district court erred by not granting him a downward departure under §§ 5K2.0 and 5K2.11. As to the request for a departure under § 5K2.0, he maintains that his case fell outside the heartland of environmental cases. As to the request for a departure under § 5K2.11, he contends that he believed that closing the plant would cause a greater environmental harm that continuing operations. Taylor presented each of his issues at sentencing. R12-20-21. The district judge asked the probation officer to comment on Taylor’s requests for a departure, and to specifically address Taylor’s cooperation during the cleanup efforts. Id. at 21-22. The probation officer responded that there were no grounds for a downward departure. Id. at 41. The district judge commented: I am equally bound by the guidelines and by the law. And I do not have much discretion. And I just cannot find a basis for departure under the guidelines, inasmuch as the facts as found are of the kind contemplated by the Sentencing Commission. Id. at 42-43. Because there is nothing in the record that indicates that the district court misapprehended its authority to depart downward, we assume that the district court understood its authority to depart and decided not to exercise its discretionary authority. Therefore, we lack jurisdiction to address the district court’s decision not to depart. III. CONCLUSION After reviewing the record and carefully considering the briefs and oral argument, we conclude that the defendants’ convictions are supported by the evidence, and that the district court did not err in the evidentiary rulings, the jury instructions, or at sentencing. Accordingly, we AFFIRM. . The site has been used by various companies for 50 years, and was unregulated by any environmental regulations until the 1970s. The site was operated as an oil refinery from 1919 to 1937 by Atlantic Richfield [ARCO], as a manufacturing site from 1937 to 1955 by Dixie Paint Company, and as a chlor-alkali facility from 1955 to 1979 by Allied Chemical. R16-85-86. Allied Chemical used graphite anodes impregnated with PCBs during the chlor-alkali process, and buried the contaminated anodes on the site. R21-54, 229. It is now a Superfund site, and is being cleaned at the expense of the government and these earlier owners. . In a memorandum regarding mercury consumption, dated 4 October 1993, Taylor noted that mercury ''[consumption was particularly high in 1988” and for 1990-1993. Govt. Ex. 19-5. An attachment showed "excess” mercury from consumption of 243, 102 pounds from 1986 to 1993. Id. The "mud” was spread onto the cellroom floors to dry, the mercury was recovered from underneath and on top of the mud, and the mud was put into drums for disposal. R19-190-93. When the wastewater covered the floors, the mud could not be stored until the water receded and it was dried. Id. at 191. The drums were stored underneath the cell-rooms. R20-62. The drums were labeled and dated when the mud was first put into the drum "because [the plant] only had a ninety-day storage period under [the] permit.” Id. at 62-63. There were "times” when the mud was "redrumed” and again labeled for another ninety-days. Id. Hanson testified that Taylor was aware of the muds in the drums. Id. at 62. At Taylor's direction, mud that accumulated in the wastewater stored in tank railcars was "drained off to the wastewater treatment area.” R20-356-57. . A sump is a hole with a grate over it. R19-34 . LCP retested and counseled any employee who tested above 150 micrograms per liter, and employees with a confirmed result above 250 micrograms were removed from further exposure until their level went below 150. R21-253-55. . The water occasionally rose high enough to splash onto or soak the walkways, and they became slick. R20-181, 322. OSHA also required that LCP utilize a lockout procedure for employees to work on a cell or pump because of the potential electrical hazards. R19-45; R20-190. In the lockout procedure, an operator ensured that the electrical power was shut off before a mechanic was permitted to begin work. R19-46-47; R20-190, 323. . One former employee, Duane Lorenzo Carver, testified that he received second and third degree burns on his thighs from caustic that had soaked through his clothes. R19-182, 197. In reference to a question regarding the conditions of the cellrooms in 1993, he said that, while digging out the sump, he misstepped and fell into the sump hole, which was filled with wastewater, "about chest deep." R19-201-03, 227-228. Carver said that he showered immediately and suffered minor burns on his stomach and legs. R19-203, 229. Carver was unable to recall the exact date, and admitted the accident could have occurred any time between 1987 and 1993. R19-226. Carver testified that, although the employees were told to report all accidents to management, he did not report the accident, and thus did not receive any medical attention. R19-230. . Randall Hansen had worked for Hanlin in a financial capacity from 1986 until 1989. . During the bankruptcy proceedings, Hanlin set aside seven to ten thousand dollars per day for professional fees. R19-147. . The' memo was addressed "Production Reliability” and noted that "[flack of money has limited the plant production capability and imposed substantial risk on maintaining acceptable production levels.” Govt. Ex. l-8a at HA 00024856. The wastewater treatment issues were one of nine noted problems. Id., HA 00024856 and 57. . J.L. Johns, the plant manager at the beginning of 1992, retired due to heart problems. R16-104. During the six month search to replace Johns, Hugh Croom, the plant manager for the LCP chlor-alkali plant in North Carolina, transferred to Brunswick and acted as plant manager. Id. at 103-05. Croom returned to the North Carolina plant in January 1993, and admitted that problems with the wastewater treatment plant and his concerns for maintaining a production rate and for the safety of the employees and the community contributed to his desire to leave Brunswick. R16-134-36. .The dumping abated once the task force was hired and the valve area was monitored. R19-58. . By letter, the bankruptcy creditors' committee advised the state judge of the bankruptcy proceedings and "the likely consequences that would result from any closing of the Brunswick plant.” R9-228, Ex. B at 1. The committee represented that "even if actual production at [the plant] was to cease, Hanlin would have an obligation to continue to spend considerable amounts of money at [the] plant in order to avoid the possibility of an environmental catastrophe.” Id. at 2. A possible environmental impact of shutting the plant down included "additional mercury leakage.” R20-147; R19-83-84. . White continued at the plant as manager until the plant closed. R20-18. . Two other plant employees, Duane Outh-waite and Christopher Dunn, were charged separately and entered into plea agreements. R8-200-7 n. 5. .Hanson was sentenced to eighteen months of imprisonment, and one year of supervised release on each count, concurrent. R8-123. . Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In Daubert, the Court held that, when "[Haced with a proffer of expert scientific testimony, ... the trial judge must determine ... whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” Id. at 592, 113 S.Ct. at 2796. . On cross-examination, Teitelbaum stated that this was the first time that he had testified as "a consultant for the U.S. Attorney,'' but explained that he had testified "for OSHA many times,” “for the Department of Justice a number of times,” and for "the EPA.” R20-255-56. He was asked whether he considered the government to be a "pretty good customer” for his services, and responded that he did not "take any money from the government” for consulting services. Id. at 256. . Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963) ("The suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”). .Hansen argues that Teitelbaum's testimony was "discredited” in four cases: General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997), Sweger v. Texaco, Inc., Nos. 88-1781, 88-1834 and 88-2745, 1991 WL 35345 (10th Cir. Feb. 22, 1991); Land v. United States, 35 Fed. Cl. 345 (1996), and National Bank of Commerce v. Associated Milk Producers, Inc., 22 F.Supp.2d 942 (E.D.Ark.1998). In General Elec. Co., the Court found that the district court did not abuse its discretion in excluding the testimony of Teitelbaum (and other expert witnesses) because the studies on which he relied were not sufficient to support his conclusion. 522 U.S. at 146-47, 118 S.Ct. at 519. In Sweger, the court found that Teitelbaum's testimony did not provide the necessary certainty to establish causation. Sweger, slip op. at 1, 5-6. In Land, Teitelbaum appeared as the plaintiffs' medical expert. 35 Fed.Cl. at 352 n. 7. The hearing officer found Teitelbuam’s " 'preliminary' medical opinion” regarding the cause of the plaintiffs' injuries to be "of little value because Dr. Teitelbaum did not conduct physical examinations of the plaintiffs.” Id. In National Bank of Commerce, the court found that Teitelbaum's view of the causation of the plaintiff's cancer was "undercut by the inadequacy of ... reliable scientific proof of causation.” 22 F.Supp. at 967. . Neither Hansen nor his codefendants questioned Reh regarding his background or his area of expertise and raised no objections to Reh's qualification. R20-194. . Reh indicated that they were requested to evaluate the health hazards associated with mercury, chlorine, and hydrochloric acid. R20-199, 203; Govt. Ex. 40-lb. . The NIOSH team consisted of Reh, a medical doctor, and another industrial hygienist. R20-198. . Reh explained that the NIOSH recommended exposure levels ("REL”) were 50 micrograms of mercury per cubic meter of air and that the OSHA permissible exposure levels ("PEL”) are 100 micrograms of mercury per cubic meter of air. R20-200. He said that all of the sixteen monitored workers showed RELs above 50, and eleven of the monitored workers had levels above the PEL. Id. at 200-01. . Reh reported that they found that 29 of the tested 58 workers had urine mercury levels which exceeded the World Health Organization recommended standard of 50. R20-208, 210. The average level was 136 micrograms per gram of creatinine, with a range from 2 to 689. Id. at 210. . Testimony of LCP former assistant production manager James Dunn, R20-327-28, 341. . Testimony of former LCP health and safety manager Douglas Brent Hanson, R20-48-49, LCP maintenance handler and expeditor George Mower, R20-183, and LCP former production manager Duane Outhwaite, R20-350. Outhwaite testified that the storage tanks were used for wastewater overflow to keep the inadequately treated wastewater from "running out the door" and to help prevent the deep pools of wastewater from forming on the cellroom floors. R20-350, 358. . Mathis testified that there were places on the report forms for the "number of excursions" or environmental noncompliances which "were filled in with 'zeros’ each time.” R19-165. He said that they later learned that the zeros were clerical errors. Id. . Despite Taylor’s resignation as plant manager and his re-employment as project engineer, he was considered to be in a management position. See R20-152 (D. Brent Hanson testified that Taylor was his immediate supervisor both before and after his resignation and re-employment); id at 335 (Dunn testified that Taylor “probably would have been plant manager” in late 1993), 337 (Dunn said that in “October of '93 I would assume [Taylor] was plant manager.”); id. at 312, Govt. Ex. 13-4 (19 January 1994 letter from Georgia EPD acting unit coordinator Susan Eason to “Plant Manager” Taylor in which she referenced Taylor’s explanation for "NPDES excursions” at a 6 December 1993 meeting). But see Govt. Exs. 13 — 2ff, gg, hh, ii, and jj (letters from Mark S. White, as “Plant Manager,” to EPD dated October-February 1994). . Testimony of James Dunn. R20-335-39. Taylor directed a memorandum addressing the mercury losses and suggesting a solution to LCP employee Chris Dunn on 4 October 1993. Govt. Ex. 19-5. Dunn responded “yes” when asked whether Taylor was aware of the overflow release from the backdoor of the cellroom. R20-327-28. Dunn testified that Taylor observed the overflow “on the ground.” Id. at 336. Dunn said that he told Taylor he was having trouble pumping the waste into the tank cars and that mercury loss was due to “leaks coming out of the products or it was tied up in hazardous waste muds.” R20-337, 339. By memorandum, Taylor proposed a flow plan for the projected waste streams of “19 to 125 gallons per minute” when the wastewater treatment system was only working at a 40 gallon per minute capacity. Id. at 340; Govt Ex. 19-4a. Wilbur Outhwaite testified that Taylor advised that the employees needed to empty the wastewa-ter from the tank cars. R20-356. . Specifically, the jury was instructed: [T]he following wastes are listed as haz1 ardous wastes under the Resource Conservation and Recovery Act, that is, RCRA: K-106 is wastewater treatment sludge from the mercury cell process in chlorine production. K-071 is brine purification muds from the mercury cell process in chlorine production, where separately prepurified brine is not used. And U-151 is simply mercury. Now you are instructed that a solid waste exhibits the characteristic of toxicity for mercury if, using the test methods set forth in the regulations, a representative sample of the waste contains mercury at a concentration of equal to or greater than 0.2 milligrams per liter. Under the law, liquid wastes which are "corrosive” are identified as hazardous wastes. A liquid waste is considered to be corrosive if a representative sample of the waste is aqueous and has a pH less than or equal to 2 or greater than or equal to 12.5. I instruct you that when a hazardous waste listed under the regulations is mixed with a solid waste, the resulting mixture is a hazardous waste if the reason for the listing of the hazardous waste is that it is a toxic waste. R22-199-200. . LCP former employee Carver explained that the line for "Discharge HC (ppb)” showed "the mercury level in the discharge water coming from the wastewater system.” R19-209. The logs provided for thirteen readings per day, but readings were typically taken only twelve times per day. Mercury levels were recorded as above 200 for nine readings on 17 April, six readings on 28 June, eight readings on 28 August, four readings on 29 August, three readings on 12 September, four readings on 6 October, two readings on 9 October, three readings on 13 October, nine readings on 18 October, six readings on October 22, and nine readings on 5 November, 1993. Govt. Exs. 4, 5, 6-1. The logs show that the system was not working during readings on 17 April, 21 June, 27-28 June, 29 August, 12 September, 6-9 October, 12-13 October, and 18-21 October 1993. Id. . Hugh Croom explained that "when the pH was high [in the wastewater on the cellroom floors] and somebody stepped over in it, it could easily burn their skin on their legs.” R16-121. He volunteered that caustic could "peel the skin off” a person if he or she fell into it. R19-107. He said that airborne mercury could cause problems because of the potential for accumulation in the body. Id. at 108. Duane Carver testified that he received second- and third-degree burns on his thighs, R19-182, 197, and that he and other employees shoveled mercury off the cellroom floors, R19-192. He explained that there was "plenty” of mercury to see "under the mud and also beaded up on top in the mud.” Id. He said that "[tjhere would be so much [mercury] that it would be running off of the mud” and that "[y]ou could get a shovelful and lean your shovel over, and the mercury would just run off the shovel onto the floor.” Id. at 192-93. John Baker testified that the wastewater "would cause severe burns.” Id. at 245. . Taylor commented that "Q]ust because the trend happened to be the same on two completely unrelated events, does not necessarily tie them together.” R21-296. He said that he "noticed a similar trend on two completely unrelated events.” Id. at 297. He admitted “that the mercury vapor levels in the workplace did increase” and that "drums of dried waste can be a source of mercury.” Id. at 297-98. . He noted that "the Swedish chlor-alkali industry ... had air levels of 20 or below and urine levels which almost never exceeded 30" in 1990, demonstrating that such an environment was possible. R20-245. He explained that a safe environment could be promoted by the use of industrial hygiene, including "engineering controls, protective equipment, substitution of materials in places where you can substitute, and administrative controls as to how long and what kind of environments people work in.” Id. at 246. . Barwick said that: [T]he fumes from the acid burners were coming down and you couldn’t breathe without wearing a respirator. It would burn your skin. It would take the hair off of your arms. It would get in your eyes, under your goggles. And everything-it had caustic. It had bleach. It had acid fumes.... After probably the last year or year and a half, that was probably a regular everyday thing almost, that you would get gas somewhere in [the cell building], R20-319-20. . Barwick testified that the mercury “was everywhere... the floors, the ledges, the beams, any place you had to get up in to to change headers ... You would have mercury on the beams. You would have mercury on the floors. When you would take the headers apart, mercury would run out of them.” R20-320. . The government argues that there may be an error in the transcript. Government brief at 23. There is no indication that this matter was submitted to and settled by the district court consistent with the procedure outlined in Fed.R.App.P. 10(e). The district judge provided the parties with an opportunity to ‘‘[sjtate [their] exceptions” after the jury instructions were read. R22-206-09. Taylor's counsel said he had been “listening carefully to the charge” and had heard the word "water” used in the place of “wastes.” Id. at 208. He then noted that the jury "will have it to read.” Id. Taylor's counsel also observed that the word “person” had been defined as an "individual corporate officer” instead of a "responsible corporate officer;” the judge made a curative instruction. Id. at 208-09. . Specifically, Hansen requested that the charge read: First, that on the date alleged in each respective count, Christian Hansen was a “person in charge of a facility,'' as that term is defined by law; Fourth, that Mr. Hansen (1) knew that the described release had occurred, (2) knew that the wastewater released contained a reportable quantity of mercury, and (3) knew that the release was not allowed by any federal permit. R4-98 at Charge 23. . Hansen’s counsel explained that he "just want[ed] the jury to understand that if the water is handled through the wastewater system, it's exempt from the ninety-day labeling and all these other things.” R22-69. The government counsel responded: "If it’s in a tank. It needs to be clear that if it's in a tank and it can be treated in a wastewater system—Id. The district judge asked that the language be provided to him in writing, and Hansen's counsel agreed to do so. Id. . Amicus curiae The Washington Legal Foundation also raises the issue that Hansen's sentence must be vacated because the environment sentencing laws were unlawfully promulgated and impose patently unreasonable sentences. However, this issue was not considered before the district court and will not be considered on appeal. United States v. Allegheny-Ludlum Indus., 517 F.2d 826, 840 n. 13 (5th Cir.1975) (noting that it would not consider issues briefed by amicus curiae which were not raised in the district court). . Randall also argues that the sentencing guidelines, as applied to environmental crimes, are arbitrary and were unlawfully promulgated. Randall did not raise this issue at the sentencing hearing but addressed it in a supplemental memorandum in aid of sentencing. R9-228-8. Randall's sentencing hearing initially commenced on 2 June 1999, and was continued on 1 July 1999. On 1 July 1999, the hearing was called to order at 10:01 AM, and recessed at 10:24 AM. The supplemental memorandum is not referenced at the sentencing hearing and was filed at 12:11 PM on 1 July 1999. Therefore, it does not appear that this was considered by the district court. Because the issue was not considered by the district court, it will not be considered by this court. Fed. Deposit Ins. Corp. v. Verex Assurance, Inc., 3 F.3d 391, 395 (11th Cir.1993). . It appears that, although the district judge did not find that the circumstances warranted a departure, he nonetheless considered Randall's arguments. During the hearing, the district judge continued: As to the Defendant's arguments concerning lesser harm, I'm not particularly impressed with that. For the Court to consider a departure under this section [§ 5K2.11], the Court would have to find either that the Defendant committed the crime in order to avoid perceived greater harm or that the Defendant’s conduct does not cause or threaten the harm or evil sought to be prevented by the laws prohibiting the offenses at issue. Now as to that first prong, the Defendant has failed to produce evidence, other than his own statement, that closing the LCP plant would have caused a greater harm than allowing it to continue operating in the unsafe manner. His argument, as I understood it, is based upon financial reasons. As I recall, he stated that there was compelling societal interest in keeping the plant open and its three hundred employees working. While sympathetic to the plight of the employees who would have, and eventually did, lose their jobs, that does not, and I do not believe that it justifies subjecting the employees and the community to the risk of operating an unsafe chlor-alkali plant. The Court finds that financial factors are not a perceived greater harm. And, therefore, no downward departure is warranted in that instance. As to the second prong, the guidelines permit a downward departure where the conduct may not cause or threaten the harm or evil sought to be prevented by the law prescribing the offense at issue. The environmental laws for which the Defendant was convicted were enacted to protect human life in the environment. Therefore, the Defendant's conduct was the type of conduct which the environmental laws sought to prevent. And as such, the Court finds that the circumstances of this offense do not warrant a downward departure under 5K2.11 of the guidelines. R14-9-11. As to the request for a departure under § 5K2.0, he stated: [I]n order for the Court to find that the Defendant’s case falls outside the heartland, the Court has to find that this is an unusual case where there is something atypical about the Defendant or the circumstances surrounding the commission of the crime. I simply cannot make such a finding. I find that the circumstances of these offenses are those contemplated by the Sentencing Commission in the formulation of the guidelines. And further, I find that there are no factors which take this case outside the heartland of the environmental guidelines. Accordingly, the Court finds that no departure is warranted under 5K2.0 of the guidelines. Id. at 11. . Taylor adopted Hansen's arguments for a departure, but added that, as to the request for a departure under § 5K2.11, that they had “prevented a greater harm from merely shutting down the plant without the proper decommissioning” based on their belief that “these problems, maintenance problems, could be addressed, the jobs could be saved, and the business could continue.” R12-20-21. He "also call[ed] the Court's attention ... to Mr. Taylor's conduct following the decommissioning of the plant.” Id. . The probation officer noted that Taylor's cooperation should not be a factor since he was a contract, paid employee. Id. at 24. In response to Taylor's argument that "there's a lesser harm in keeping somebody employed than dumping hundreds of thousands of gallons of contaminated water into a marsh,” he commented that "there was a tremendous amount of harm done to the environment... They're not looking at the effects.... [The] area was closed off by the Georgia Environmental Protection department because the fish and the seafood in there w[ere] contaminated. We will never know what damage this has all done.” Id. at 40.

American Mining Congress v. Thomas

LOGAN, Circuit Judge. These consolidated cases involve challenges to the Environmental Protection Agency’s (EPA) standards for the cleanup and disposal of uranium mill tailings originating from designated inactive mill sites. The EPA established these standards pursuant to its authority under the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA), as amended, 42 U.S.C. §§ 2022 and 7901-7942. The UMTRCA required the EPA to promulgate standards that could be applied generally to protect the environment and the public health and safety from radioactive and nonradioactive hazards posed by uranium mill tailings at both active and inactive processing sites. Under the statutory scheme the federal government and the affected state share the costs of the remedial action taken to control mill tailings, see 42 U.S.C. § 7917, with the possibility of later reimbursement from private parties, id. § 7925. The EPA standards that we review here pertain only to inactive mill sites. In a companion case released this day we review regulations relating to active mill sites. See American Mining Congress v. Thomas, 772 F.2d 640 (10th Cir.1985) (Active Sites Case). The following parties filed petitions for review of these standards: the American Mining Congress, a trade association; joint petitioners United Nuclear Corporation, Kerr-McGee Corporation, Kerr-McGee Nuclear Corporation, and Homestake Mining Company; joint petitioners Sierra Club, Environmental Defense Fund, Natural Resources Defense Council, Southwest Research and Information Center and Jean Slattery; and the State of Colorado as in-tervenor. In addition, the State of Wyoming filed an amicus brief. I The final product of the milling process for uranium ore is uranium-rich “yellow-cake,” U3O8. The milling process also produces a residue of either slime or coarse sand. This residue, which comprises the uranium mill tailings piles, contains radioactive material, the most significant of which is radium. Radium decays to produce radon. Radon is an inert gas, some of which escapes from the tailings particles into the atmosphere. Airborne radon degrades into a series of short half-life decay products that are hazardous if inhaled. If the radon gas does not escape the mill tailings piles, its decay products remain in the piles and produce gamma radiation, which may be harmful to people and animals living near the mill tailings piles. Uranium mill tailings also contain potentially dangerous nonradioactive materials such as arsenic and selenium. These toxic and radioactive materials may be ingested with food or water. 48 Fed.Reg. 590, 592 (1983). See generally I Environmental Protection Agency, Final Environmental Impact Statement for Remedial Action Standards for Inactive Uranium Processing Sites 3-68 (1982) [hereinafter FEIS-IN], To deal with the perceived dangers presented by uranium mill tailings, Congress enacted the UMTRCA. When it passed this legislation in 1978, it stated, in a section titled “Congressional findings and purposes”: “uranium mill tailings located at active and inactive mill operations may pose a potential and significant radiation health hazard to the public, and that the protection of the public health, safety, and welfare ... require[s] that every reasonable effort be made to provide for the stabilization, disposal, and control in a safe and environmentally sound manner of such tailings in order to prevent or minimize radon diffusion into the environment and to prevent or minimize other environmental hazards from such tailings.” 42 U.S.C. § 7901(a). In the UMTRCA, Congress gave the Department of Energy (DOE) and the Nuclear Regulatory Commission (NRC) responsibility for implementing a remedial program to clean up and dispose of the mill tailings. See id. §§ 7911-7924. The EPA is'responsible for promulgating the general standards that the implementing agencies must meet. See id. §§ 2022(a), 7918(a). The EPA issued proposed general standards for the remedial program in two parts: cleanup standards and disposal standards. The EPA intended the cleanup standards to reduce the detrimental health consequences of tailings that have been dispersed from the tailings piles or used in construction. 45 Fed.Reg. 27,370, 27,370 (1980). The EPA intended that the disposal standards place the tailings piles “in a condition which will be safe for a long time.” Id. On April 22, 1980, the EPA Administrator published for comment “Proposed Cleanup Standards for Inactive Uranium Processing Sites.” 45 Fed.Reg. 27,370 (1980). These proposed standards were “for the cleanup of open lands and buildings contaminated with residual radioactive materials (mainly tailings) from inactive uranium processing sites.” Id. The EPA made them immediately effective as interim standards pending comment, review, and promulgation of the final standards. The EPA also issued a draft environmental impact statement to support the proposed standards. The proposed cleanup standards established allowable levels of radium concentration in soil contaminated by dispersed tail-ings. The standards also set permissible levels of radon decay product concentration and gamma radiation in occupied or occupiable buildings affected by the tailings. In addition, these proposed standards contained exceptions to strict compliance if certain criteria were met. Id. at 27,375. At qualifying sites, the implementing agency was to perform remedial action that would come as close as possible to meeting the standard to which the exception applied. Id. The EPA issued the second set of proposed standards, the disposal standards, on January 9, 1981. 46 Fed.Reg. 2556 (1981). The disposal standards placed limits on the radon release to the atmosphere from the tailings piles and also placed limits on water contamination from the piles. Id. These standards required that the tailings be disposed of in a manner “that provides a reasonable expectation that these limits will be satisfied for at least one thousand years.” Id. In the proposed disposal standards the EPA left little doubt that it foresaw covering the tailings piles as the most viable means to achieve the proposed radon emission standards. The EPA stated, “In the draft EIS we analyze the health and environmental protection benefits and the costs of several levels of controlling tailings, assuming a variety of potential control methods. We find that radon emission levels of an ‘average’ pile can be reduced to approximately the levels characteristic of ordinary land by applying a soil cover at costs in a range of about 1 to 14 million (1979) dollars.” Id. at 2559. One of the standards established limits for concentrations of toxic substances in underground sources of drinking water. Another water standard required that substances released from the disposal site “after disposal will not cause the concentration of any harmful dissolved substance in any surface waters to increase above the level that would otherwise prevail.” Id. at 2562. The EPA received extensive comments on both the proposed cleanup and disposal standards. See II FEIS-IN (summary of comments and responses). The comments were wide ranging — the industry petitioners argued that there was insufficient evidence of risk of harm to warrant the standards, while the environmental groups argued that the proposed standards did not provide adequate protection against the risks posed by the tailings. Both sides buttressed their arguments with technical studies and expert analysis. Congress in 1982 discussed amendments to the UMTRCA to extend the deadline for the promulgation of final standards and enacted an amendment on January 4, 1983. See Act of Jan. 4, 1983, Pub.L. No. 87-415, sec. 18, 96 Stat. 2067, 2077 (1983) (codified at 42 U.S.C. § 2022(a)) (generally referred to as the “1982 amendment”). Anxious to institute standards for the mill tailings, Congress also provided that should the EPA miss the extended deadline, remedial action would commence using the proposed standards. Id.; House Conf.Rep. No. 884, 97th Cong., 2d Sess. 44-45, reprinted in 1982 U.S.Code Cong. & Ad.News 3592, 3603, 3614-15. By the time Congress passed the amendment its specified deadline for inactive sites had already passed. See 42 U.S.C. § 2022(a). Important for our purposes is that Congress also included in the 1982 amendment a sentence explaining the various factors that it required the EPA to consider in developing the standards: “In establishing such standards, the Administrator shall consider the risk to the public health, safety, and the environment, the environmental and economic costs of applying such standards, and such other factors as the Administrator determines to be appropriate.” Id. On January 5, 1983, one day after Congress passed the amendment, the EPA promulgated the final “Standards for Remedial Actions at Inactive Uranium Processing Sites,” which covered both cleanup and disposal requirements. 48 Fed.Reg. 590 (1983) (filed Dec. 30, 1982) (codified at 40 C.F.R. §§ 192.00-43 (1984)). The final regulations differed, in some ways quite substantially, from the proposed standards. In explaining the changes in general terms the EPA said: “In response to comments on the proposed standards for disposal and for cleanup, we have evaluated a number of alternatives in terms of their costs and the reductions achievable in potential health effects. A number of changes have been made, including raising some of the numerical limits and eliminating some requirements. The purpose of most of these changes is to make implementation easier and less costly. The changes should not result in any substantial loss of health or environmental protection over that which would have been provided by the proposed standards.” 48 Fed.Reg. at 590. After specifically explaining in a table the various alternatives it had considered for disposal of the mill tailings piles, the EPA divided the alternatives into categories of least cost, optimized cost-benefit, or nondegradation alternatives. Id. at 591. To justify the less stringent final disposal standards, the EPA said that the original standards it had proposed were close to nondegradation standards and that they would have been difficult to implement because they required cleanup and control limits close to background levels of radiation. Id. It also said that “the small incremental health benefits, when compared to the benefits for less stringent alternatives, do not appear to justify the large additional costs.” Id. In its final standards, the EPA purported to select an “optimized cost-benefit” rather than a “least cost” altentative. Id. The final standard for control or disposal of the tailings piles set the radon emission limit at 20 pCi/m2s rather than the proposed 2 pCi/m2s limit. Id. Furthermore, the EPA changed the flat 1000 year disposal longevity requirement, qualifying it with the language, “to the extent reasonably achievable and, in any case, for at least 200 years, ____” 40 C.F.R. § 192.02(a) (1984). The final regulation set the cleanup standard for land, the maximum concentration level of radium 226, at 5 pCi/gram averaged over the first 15 centimeters of soil and at 15 pCi/gram for soil layers more than 15 centimeters below the surface. This standard was an increase from the 5 pCi/gram level set out in the proposed standard for subsurface soil. 46 Fed.Reg. at 2562. After explaining the differences between the proposed and final regulations for dispersed tailings contaminating the soil, the EPA stated that it believed the final standards “will result in essentially the same degree of cleanup, and will be simpler to implement.” 48 Fed.Reg. at 600. The EPA also adjusted the final standards on the limits for radioactivity in buildings affected by the mill tailings. The EPA increased the maximum permissible level of radon decay product concentration from 0.015 WL to 0.03 WL, requiring, however, that “reasonable effort shall be made to achieve, an annual average (or equivalent) radon decay product concentration (including background) not to exceed 0.02 WL.” 40 C.F.R. § 192.12(b)(1) (1984). The level of gamma radiation allowed by the final standards is no more than 20 microro-entgens per hour over background level. Id. § 192.12(b)(2). Commenting upon the difficulty of assessing water contamination at the various sites and stating a belief that there was a low probability of additional contamination at most sites, the EPA retreated from its proposed water regulations, stating that it was refusing to enact general regulations on the subject. 48 Fed.Reg. at 599. The EPA, however, did recognize the potential for site-specific water contamination problems. In the cases where there was a potential for ground water contamination, the EPA declared that it had provided: “in the implementation section of these standards, that judgments on the possible need for monitoring or remedial actions should be guided by relevant considerations described in EPA’s hazardous waste management system, and by relevant State and Federal Water Quality Criteria for existing and anticipated uses of the aquifer.” Id. at 599-600. The EPA adopted the same approach to surface water contamination, leaving the regulatory burden to the DOE and the NRC on a site-specific basis, although it indicated that it thought surface water would be adequately protected in any case by its general disposal standards. Id. The final standards, like the proposed standards, incorporated provisions allowing the implementing agency to grant exceptions if certain criteria were met. See 40 C.F.R. §§ 192.21-22 (1984). The industry petitioners, the environmental groups, and the State of Colorado raise the following issues for our consideration: (1) whether the EPA must find that the mill tailings piles present “a significant risk” of harm before promulgating standards under the UMTRCA; (2) whether the EPA’s radon emission and radium-in-soil standards are invalid because they are on-site standards beyond the EPA’s authority to promulgate; (3) whether the EPA standards unlawfully impose management, design, and engineering requirements; (4) whether the EPA should engage in a cost-benefit analysis in establishing the standards for the final regulations, particularly the radon emission standard; (5) whether the EPA’s standards for the mill tailings piles are arbitrary and capricious because they are unsupported by the record and bear no rational relationship to the protection of the public safety and health and the costs required to implement them; and (6) whether by abandoning general water quality standards and standards regarding non-radiological toxic pollutants the EPA has acted contrary to the law. The UMTRCA refers to the Administrative Procedure Act, 5 U.S.C. §§ 701-706, for standards of judicial review of rules promulgated under it. See 42 U.S.C. § 2022(c)(2). The appropriate standard of review for this type of informal, notice and comment rulemaking is that an agency’s action may be set aside if found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A). The Supreme Court recently has reiterated a restrictive view of the arbitrary and capricious standard, stating: “The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ... In reviewing that explanation, we must ‘consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’ ... Normally, an agency rule would be arbitrary and capricious if 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.” Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983) (citations omitted). In addition, as part of our review, we also determine: (1) whether the agency acted within the scope of its authority, and (2) whether the agency complied with the prescribed administrative procedures. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-17, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971); American Petroleum Institute v. EPA, 540 F.2d 1023, 1028 (10th Cir.1976), cert. denied, 430 U.S. 922, 97 S.Ct. 1340, 51 L.Ed.2d 601 (1977); 5 U.S.C. § 706(2)(A) (C) &(D). II A preliminary question arises as to what documents we may review in considering these petitions. The EPA, supported by the environmental petitioners, has moved to strike references in the briefs filed by industry petitioners to documents and reports not in the record. Industry petitioners not only allege that those items are proper for our consideration but have moved to supplement the record to include the documents and reports that they cite. A decision on the appropriate use of these materials is important, because, in this ease, we are a reviewing body, not an independent decision maker. We do not substitute our judgment for the judgment of the agency simply because we might have decided matters differently. We agree with the comments in Deukmejian v. Nuclear Regulatory Commission, 751 F.2d 1287, 1323-1326 (D.C.Cir.1984), that the agency’s action must be reviewed on the basis articulated by the agency and on the evidence and proceedings before the agency at the time it acted. Aggressive use of extra-record materials also would run directly counter to the admonitions of the Supreme Court in Motor Vehicle Manufacturers Association. Thus, any exception to this general rule against the use of extra-record materials must be extremely limited. Nevertheless, a few courts have found exceptions. A recent law review article discusses the problem that we, and all other appellate courts, face in determining whether and how to use extra-record citations. Stark & Wall, Setting No Records: The Failed Attempts to Limit the Record in Review of Administrative Action, 36 Ad.L.Rev. 333, 335 (1984). The article notes that, on review, parties have offered extra-record studies and other evidence under a number of justifications, including: (1) that the agency action is not adequately explained and cannot be reviewed properly without considering the cited materials, see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971); (2) that the record is deficient because the agency ignored relevant factors it should have considered in making its decision, see Hiatt Grain & Feed, Inc. v. Bergland, 446 F.Supp. 457, 467 (D.Kan.1978), aff'd on other grounds, 602 F.2d 929 (10th Cir.1979), cert. denied, 444 U.S. 1073, 100 S.Ct. 1019, 62 L.Ed.2d 755 (1980); (3) that the agency considered factors that were left out of the formal record, see Environmental Defense Fund, Inc. v. Blum, 458 F.Supp. 650, 661 (D.D.C.1978); (4) that the case is so complex and the record so unclear that the reviewing court needs more evidence to enable it to understand the issues, see Bunker Hill Co. v. EPA, 572 F.2d 1286, 1292 (9th Cir.1977); and (5) that evidence coming into existence after the agency acted demonstrates that the actions were right or wrong, see American Petroleum Institute v. EPA, 540 F.2d 1023,1034 (10th Cir.1976), cert. denied, 430 U.S. 922, 97 S.Ct. 1340, 51 L.Ed.2d 601 (1977). As Stark and Wall observe, when such justifications are offered the court is forced as a practical matter to examine the material, whether or not motions to supplement the record are granted. 36 Ad.L.Rev. at 343-44. In the instant case one or more of the above justifications are advanced with respect to virtually all extra-record citations. We have in fact considered those materials to see if they fall within any of these possible justifications. But the fact that we examine these materials for the limited purposes set forth above does not mean that the cited items should become a part of the record in these cases. The references to such extra-record items, we believe, are substantially akin to the practice of citation to scientific treatises in ordinary civil cases. Therefore, we deny the EPA’s motion to strike the references; but we also deny all motions to supplement the record except the EPA’s unopposed motion to supplement the record with a letter of transmittal dated June 8, 1983, from Christopher Herman of the EPA to Larry Boggs, counsel for petitioner American Mining Congress and two accompanying memoranda dated April 27, 1983, and June 7, 1983. Ill The industry petitioners contend that the language and legislative history of the UMTRCA require the EPA to find that the mill tailings piles pose a “significant risk” before the EPA may promulgate regulations dealing with the mill tailings piles. Petitioners rely on Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980) (hereinafter the Benzene case). In the Benzene case, Justice Stevens, for the plurality, invalidated OSHA regulations intended to protect workers from the carcinogenic effects of benzene. Justice Stevens and three other members of the Court agreed that under §§ 3(8) and 6(b)(5) of the Occupational Safety and Health Act, before the Secretary may promulgate any permanent standards for workers’ health and safety, he must find that their workplace presents a significant risk of harm. Id. at 642, 100 S.Ct. at 2864. In so concluding, the plurality relied heavily upon the actual language from §§ 3(8) and 6(b)(5). Id. at 641-42, 100 S.Ct. at 2863-64. We believe that the Benzene case and all the other OSHA cases requiring a threshold finding of significant risk are readily distinguishable from the case at hand. In the UMTRCA Congress commanded the EPA, the NRC, and the DOE to deal with the problems posed by uranium mill tailings: “The Congress finds that uranium mill tailings located at active and inactive mill operations may pose a potential and significant radiation health hazard to the public, and that the protection of the public health, safety, and welfare and the regulation of interstaté commerce require that every reasonable effort be made to provide for the stabilization, disposal, and control in a safe and environmentally sound manner of such tailings in order to prevent or minimize radon diffusion into the environment and to prevent or minimize other environmental hazards from such tailings.” 42 U.S.C. § 7901(a) (emphasis added). It would be disingenuous to hold, after reading Congress’ own statement of its findings and purposes, that the EPA must make its own determination of whether radon emissions present a risk significant enough to warrant regulation under the UMTRCA. Admittedly, the language “may pose a potential ánd significant radiation health hazard to the public” might lead one to question whether Congress was resolute on the degree of danger the mill tailings pose. Yet, even if Congress was unsure of the absolute risk posed by mill tailings, it was sure of its desire to stabilize and dispose of the tailings and that “every reasonable effort be made to provide for the stabilization, disposal, and control in a safe and environmentally sound man-ner____” Id. The legislative history of both the UMTRCA and its 1982 amendment confirm our belief that it is unnecessary for the EPA to make its own determination that the tailings pose a significant risk. The House Report on the UMTRCA stated, “[a]s a result of being for all practical purposes, a perpetual hazard, uranium mill tailings present the major threat of the nuclear fuel cycle.” H.R.Rep. No. 1480, Part 1, 95th Cong., 2d Sess. 11, reprinted in 1978 U.S.Code Cong. & Ad.News 7433, 7433. Thus, Congress considered the mill tailings a hazard, despite evidence brought before it that mill tailings might not pose an immediate danger to current generations. In part two of the same House Report the NRC Chairman, Dr. Joseph M. Hendrie, described how the mill tailings piles present a hazard to the public health: “Unlike high-level radioactive waste from the back end of the nuclear fuel cycle, which contains products of the fission reaction, mill tailings contain only naturally occurring radioactive elements, in small quantities____ The health effects of this radon production are tiny as applied to any one generation, but the sum of these exposures can be made large by counting far into the future, large enough in fact to be the dominant radiation exposure from the nuclear fuel cycle.” Id. at 25, 1978 U.S.Code Cong. & Ad.News at 7433, 7452. By including such passages in its report, Congress showed it was clearly aware that the mill tailings themselves did not pose an immediate grave danger to persons in being. Nevertheless, Congress chose to consider protecting future generations by enacting the UMTRCA and requiring the immediate stabilization and disposal of those tailings. The 1982 amendments did not change the thrust of the original UMTRCA plan. The changes in the legislation that pertained to the EPA’s duties under the UMTRCA, according to the House Conference Report, were not designed to change the EPA’s basic regulatory approach. House Conf. Rep. No. 884, supra, at 47, 1982 U.S.Code Cong. & Ad.News at 3592, 3617. Instead, Congress designed the amendments to set out the factors that the EPA should consider in developing the standards. The Conference Report indicated that Congress did not find fault with the EPA’s proposed standards. “In each instance, the conferees have agreed to include specific references in the appropriate sections of the Atomic Energy Act directing EPA and NRC, in promulgating such standards or regulations, to consider the risk to the public health, safety, and the environment, the environmental and economic costs of such standards of [sic] regulations, and such other factors as EPA or NRC, respectively, determine to be appropriate. ... The conferees note that this language reflects accurately the current regulatory approach of the agencies. The language agreed to by the conferees should not result in any delays in establishment of remedial action standards. EPA, for example, has already advised the conferees that it is considering costs in formulating its inactive site requirements---- Moreover, in adopting the language, the conferees intend neither to divert EPA and NRC from their principal focus on protecting the public health and safety nor to require that the agencies engage in cost-benefit analysis or optimization. ■ The conferees are of the view that the economic and environmental costs associated with standards and requirements established by the agencies should bear a reasonable relationship to the benefits expected to be derived. This recognition is consistent with the accepted approach to establishing radiation protection standards, and reflects the view of the conferees that, in promulgating such general environmental standards and regulations, EPA and NRC should exercise their best independent technical judgment in making such a determination. At all times, the conferees fully intend that EPA and NRC recognize as their paramount responsibility protection of the public health and safety and the environment.” Id. In this conference report there was no mention of the necessity of finding “significant risk” before promulgating regulations. We believe it would be outside the appropriate bounds of judicial review for us to require a showing of significant risk when Congress has been clear in its approval of the EPA’s approach to mill tailing regulation. IV The industry petitioners argue that the EPA’s radon “flux” or emission limits and radium-in-soil cleanup standards exceed the EPA’s statutory authorization because they operate inside the mill tailings sites. This argument that the EPA may not adopt standards that operate at the mill tailings sites derives from the 1970 Reorganization Plan which transferred the Atomic Energy Commission (now NRC) authority to set generally applicable environment standards to the EPA. See generally Ouivira Mining Co. v. EPA, 728 F.2d 477, 480 (10th Cir.1984) (history of reorganization). That act defined standards to mean “limits on radiation exposures or levels, or concentrations or quantities of radioactive materials, in the general environment outside the boundaries of locations under the control of persons possessing or using radioactive material.” 84 Stat. 2086, 2088 (1970) (codified at 5 U.S.C.App. § 2(a)(6) at 1132-33). The AEC (now NRC) was to retain authority over the licensing of commercial operations using or producing radioactive materials. 5 U.S.C.App. at 1135. The American Mining Congress argues that this strict distinction between the EPA operating outside site boundaries and the NRC operating on-site has been maintained in the UMTRCA. The reference to “outside the boundaries,” however, does not appear in the final version of § 275 of the UMTRCA. 42 U.S.C. § 2022(b). As finally enacted that statute requires the EPA to adopt only “standards of general application,” leaving “implementation and enforcement” to the NRC in the conduct of its licensing activities. Id. at § 2022(d). The legislative history and administrative interpretations prior to the promulgation of these regulations are less than clear. Yet Congress’ concern all along has been the protection of the general public from radiation and other hazards connected with these operations. See House Conf.Rep. No. 884, supra, at 47, 1982 U.S.Code Cong. & Ad.News at 3617. If one of the principal hazards is inert radon gas that escapes from a pile into the atmosphere and travels some distance, the obvious remedy is to prevent that escape. Such remedy requires measures applicable at the source. We hold that the EPA has not exceeded its statutory authority in adopting this remedy. V The American Mining Congress argues that the radon “flux” or emission limits and radium-in-soil cleanup standards limits are invalid because they influence, and to a great extent define, the type of engineering or design standard to be selected by the implementing agency. See H.R.Rep. No. 1480, Part 1, supra, at 17, reprinted in 1978 U.S.Code Cong. & Ad.News at 7433, 7439 (“The EPA standards and criteria should not interject any detailed or site-specific requirements for management, technology or engineering methods ... on the Department of Energy.”). As noted above, Congress sought in the UMTRCA to divide responsibility for disposal and cleanup among the agencies, with the EPA setting standards for general application and the DOE and the NRC implementing those standards. See 42 U.S.C. §§ 7911-7925. This division of responsibility and authority, however, should not be read to prevent the EPA from instituting a radon flux or radium limit that could be translated into a covering measurement requirement. As we discuss in the next section, the EPA had to meet a congressional mandate of some sort of cost-benefit analysis in promulgating the regulations. To do so it had to be able to estimate the cost of implementing the regulations. To determine the cost, the EPA had to have an approximate idea of the type of remedial action that will be undertaken; otherwise, its task is impossible. We therefore hold that the EPA did not exceed its authority by enacting emission limitations that appear to correlate directly with covering measurements. Furthermore, because the standards are general in nature — they apply to all sites — we do not view them as site-specific “management, technology or engineering” methods. VI All petitioners criticize the EPA’s approach in considering costs and benefits in developing the standards. The industry petitioners find fault with what they describe as the EPA’s failure to consider costs of disposal and cleanup in comparison with what they perceive as the limited health benefits of the regulation. The environmental petitioners, on the other hand, argue that the EPA should promulgate strict feasibility standards, with a very limited review of the costs of implementing those standards. The environmental petitioners argue that the UMTRCA requires the EPA to protect the public health to the maximum extent possible, constrained only by technical feasibility, and, to some extent economic feasibility. Feasibility analysis, as the Supreme Court has used that term, places a less severe restraint on agency action intended to forestall environmental harm than cost-benefit analysis. See American Textile Manufacturers Institute, Inc. v. Donovan, 452 U.S. 490, 507-09 & n. 27, 101 S.Ct. 2478, 2489-90 & n. 27, 69 L.Ed.2d 185 (1981). Feasibility analysis and cost-benefit analysis are mutually exclusive approaches. Id. at 509, 101 S.Ct. at 2490. In light of the language of the 1982 amendment to the UMTRCA we must reject the environmental petitioners’ argument that control of mill tailings should be as extensive as is capable of being performed. The amendment foreclosed the EPA’s use of a feasibility standard in promulgating regulations by requiring the EPA to consider “the environmental and economic costs” of applying the standards. 42 U.S.C. § 2022(a). The legislative history also reveals Congress’ intent to forgo a feasibility standard. The conference report noted that there should be a reasonable relationship between the environmental and economic costs associated with the standards and the benefits to be derived from them. House Conf.Rep. No. 884, supra, at 47, 1982 U.S.Cong. & Ad.News at 3617. We agree with the industry petitioners that the UMTRCA does require a consideration of costs relative to benefits, a cost-benefit analysis, by requiring a reasonable relationship between costs and benefits. We have no doubt, after reading the UMTRCA and its legislative history, that Congress gave the EPA a clear indication of its intent to require some sort of cost consideration. See American Textile Manufacturers, Inc., 452 U.S. at 510-11, 101 S.Ct. at 2491. Nevertheless, although Congress acknowledged a cost-benefit requirement, it did not define what the EPA must do to meet that requirement in promulgating regulations. The label “cost-benefit analysis” encompasses everything from a strict mathematical balancing formula to a less strict standard that merely requires the agency to recognize both the costs and benefits of specific proposed alternatives and consider the differences in choosing an appropriate alternative. “Labels are neither important nor determinative.” American Petroleum Institute v. EPA, 540 F.2d 1023, 1037 (10th Cir.1976), cert. denied, 430 U.S. 922, 97 S.Ct. 1340, 51 L.Ed.2d 601 (1977). We read the UMTRCA to provide that the EPA must consider the costs involved in the regulations and, with the guidance of Congress' intent, find that these costs bear a reasonable relationship to the benefits derived. See House Conf. Rep. No. 884, supra, at 47, 1982 U.S.Code Cong. & Ad.News at 3617. The EPA must consider Congress’ intent to protect the public health and safety and the environment in its decision, because this intent refines the cost-benefit standard by assigning the values or weights that the EPA must use in its determination of a balance of benefits and costs. Id. (Congress considered protection of these things to be “paramount”); see generally American Petroleum Institute, 540 F.2d at 1028 (“the guiding star is the intent of Congress ____ All issues must be viewed in the light of that intent.”). The EPA labeled its final standard for control of the tailings piles as an “optimized cost-benefit” alternative. 48 Fed.Reg. at 591. The legislative history of the statute specifically stated that an optimized cost-benefit analysis was not necessary. It also stated that even a cost-benefit analysis was not required. In the House Conference Report, discussing the 1982 amendment, it states, “The language agreed to by the conferees should not result in any delays in establishment of remedial action standards. EPA, for example, has already advised the conferees that it is considering costs in formulating its inactive site requirements____ Moreover, in adopting the language, the conferees intend neither to divert EPA and NRC from their principal focus on protecting the public health and safety nor to require that the agencies engage in cost-benefit analysis or optimization. ” House Conf. Rep. No. 884, supra, at 47, reprinted in 1982 U.S.Code Cong. & Ad. News at 3592, 3617 (emphasis added). The topic sentence of the next paragraph states, however, that “[t]he conferees are of the view that the economic and environmental costs associated with standards and requirements established by the agencies should bear a reasonable relationship to the benefits expected to be derived.” Id. This language, in the context of the entire legislative history of the 1982 amendments, see infra notes 10 and 11, convinces us that Congress intended cost-benefit analysis, but less strict than an optimized cost-benefit analysis. VII We must examine each standard to determine whether the EPA properly considered in its analysis each factor required by Congress. Moreover, we must determine whether the EPA’s record supports the EPA’s action. See Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C.Cir.) (en banc), cert. denied, 426 U.S. 941, 96 S.Ct. 2662, 49 L.Ed.2d 394 (1976). A The industry petitioners criticize the EPA’s change in and justification for: its radon emission standard (allegedly from a risk of lung cancer to a risk of misuse); its linear-nonthreshold calculations of radon risk; and its projected life-savings from the promulgation of the regulations. They also criticize the insubstantial benefits of the regulations, which they say bear no rational relationship to their substantial costs. We do not believe that misuse is an unreasonable justification for the standard, particularly in light of the fact that misuse of the tailings helped lead to the enactment of the UMTRCA. See H.R.Rep. No. 1480, Part 1, supra, at 11, 1978 U.S.Code Cong. & Ad.News at 7433, 7434. We do not believe that the EPA shifted its justification for the radon standard in a manner that denied any party the opportunity to comment on the alleged newly asserted justification, misuse of tailings. In its description of the proposed standard for “Control of Tailing Piles” the EPA stated: “Many interrelated factors affect the long-term performance of tailings pile disposal methods. They include external natural phenomena, such as earthquakes, floods, windstorms, and glaciers, internal chemical and mechanical processes, and human activities." 46 Fed.Reg. at 2558 (emphasis added). Thus, given the legislative history of the Act and the EPA’s own language in the proposed standards, misuse, as a justification for the standards, was sufficiently foreshadowed in the proposed scheme; the parties here were not deprived of notice or an effective opportunity to respond. See Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547 (D.C.Cir.1983); Beirne v. Secretary of Department of Agriculture, 645 F.2d 862, 865 (10th Cir.1981). This court recognizes the industry concerns over the costs that must be incurred to prevent, using the EPA’s calculations, approximately 170 to 240 potential lung cancer deaths per century in the United States from uncontrolled mill tailings from all inactive sites. 48 Fed.Reg. at 593; I FEIS-IN at 67. We think there is reasonable authority to support the EPA’s method of risk calculation in regard to its potential lung cancer deaths estimate. See Reserve Mining Co. v. EPA, 514 F.2d 492, 507 n. 20 (8th Cir.1975) (en banc) (“Indeed, a number of the disputes involve conflicting theories and experimental results, about which it would be judicially presumptuous to offer conclusive findings.”). The industry petitioners also criticize the EPA’s “estimate that people living continuously next to some of the piles may have lifetime excess lung cancer risks as high as 4 chances in 100.” 48 Fed.Reg. at 593, 598. They criticize these figures on several bases, arguing that: (1) few people, if any, are subjected to this risk; (2) the estimate is unreasonable in its assumption that someone would live continuously near a tailings pile; (3) the radon daughter concentrations to which nearby individuals are allegedly exposed, which the EPA listed in the Final Environmental Impact Statement, do not correlate with the radon concentrations in the study the EPA cites; (4) the EPA based the radon measurements on inadequate sampling data; and (5) the risk measurements include background radiation, not just radon from the tailings piles. We address separately these arguments. The EPA has made a “4 in 100” excess risk of lung cancer calculation for those residing near the inactive sites in its radon risk calculation. This figure defines both the risk created by the inactive mill tailings and the benefit to be derived from instituting the radon emission standard — avoidance of that risk. We believe the evidence in the record reasonably supports this risk estimate figure. Most of the inactive uranium mill tailing sites are located in rather sparsely populated areas. Congress no doubt was aware of this fact when it enacted the UMTRCA and designated the specific sites to which the regulations would apply. See 42 U.S.C. § 7912. There are, however, piles located near cities with sizeable local populations, such as Salt Lake City, Utah, and Grand Junction, Colorado. See I FEIS-IN at 60, Table 4-3. In addition, as the EPA points out, population distributions may change, as a consequence exposing more people to the dangers of radon. I FEIS-IN at 59 (“Although we have ignored population changes since 1970, a future increase in population at several of the urban sites seems likely.”). Therefore, although we may agree with the industry petitioners that few people are currently exposed to radon from the piles, this fact does not necessarily negate the need for regulation, especially in light of Congress’ presumed knowledge regarding the population density in areas surrounding the designated sites. We also reject industry petitioners’ assertion that it is unreasonable that someone would live continuously near a pile. Supposedly rational people in our society continuously expose themselves to risks of greater magnitude than those involved here: workers with nuclear materials, underground coal miners, and many others. Some do it for money, some because they underestimate the risk. Radon emission from these piles will occur for thousands of years unless prevented. Public awareness of the dangers may wane. The industry petitioners’ criticism does not undermine the validity of the risk assessment; it only points to the limited number of persons who currently may be subject to the risk. Industry petitioners are correct that there were some discrepancies between the exposure level estimates used to calculate the risk factor included in the Final Environmental Impact Statement, and the referenced study conducted by consultants Ford, Bacon and Davis Utah, Inc. See Letter from Christopher Herman, Attorney, Air, Noise and Radiation Division, United States Environmental Protection Agency, Brief for American Mining Congress, Addendum F. Although these discrepancies alter the risk estimates, we do not think that the deviation is sufficiently significant to render the EPA’s upper limit risk estimate to be unsupported by available data. Precision is desirable, yet these discrepancies do not rise to a level that would require invalidation of an estimate as an arbitrary decision. Industry petitioners criticize the EPA for calculating risk from figures they allege were derived from inadequate sampling data and data that included background levels of radiation, instead of figures based solely on the radon emitted from the inactive sites. We do not find these flaws fatal to the EPA’s conclusions. The sampling data compiled by the researchers for the EPA is adequate to support the EPA’s estimates. An estimate of risk may reasonably include possible background risk— to exclude it could lead to unrealistic assumptions regarding the dangers that the sites do present. B The industry petitioners’ arguments against the EPA’s radium-in-soil concentration standard, 40 C.F.R. § 192.12(a) (1984), are similar. They say the standards are invalid because (1) the EPA’s assumptions about the likelihood of significant exposures from the concentrations do not support the standard; and (2) the EPA’s assumptions about the relationship between radium concentrations in the soil and indoor radon exposure and potential health effects are arbitrary. As the EPA points out, contaminated soil under or near a building contributes significantly to indoor radon. 48 Fed. Reg. at 600. The EPA admits in the FEIS-IN, and the industry petitioners point out, that the actual exposure to radon from contaminated soil may vary from the levels that the EPA assumed. Even considering the possible inaccuracies of the EPA’s assumptions, there is nothing in the record or arguments presented to convince us that the EPA acted arbitrarily or capriciously in promulgating this standard to deal with a significant danger the tailings piles present. The State of Colorado claims that the EPA provided inadequate notice and opportunity for comment on the one hundred square meter sample area for the radium concentration standard. Although this sort of area designation admittedly could influence the effectiveness of the standard, it is not the sort of change that necessitates a new round of comment. C In its final standard the EPA increased the allowable level of indoor radon concentration from 0.015 WL to a maximum level of 0.03 WL, stressing that reasonable effort should be made to achieve a radon concentration level of 0.02 WL. See 40 C.F.R. § 192.12(b)(1) (1984). The EPA justified this change on the basis that it would ease implementation of the final standard. See 48 Fed.Reg. at 600. It further stated that “the final standard deals adequately with complications introduced by the presence of any high concentration of naturally-occurring radionuclides, and avoids unnecessary and costly remedial actions that produce only marginal improvements.” Id. The environmental petitioners criticize the final standard for allowing an unjustified increase in risk, represented by the changes from the proposed to the final standard. The proposed standard of 0.015 WL had an estimated residual risk of lung cancer of 0.8 in 100. I FEIS-IN at 108, Table 7-1. The “reasonable effort” level of the final standard, 0.02 WL, had an estimated residual risk of lung cancer of 1.3 in 100. Id. Contrary to the environmental petitioners’ argument, the EPA did evaluate the residual risk of lung cancer of the ceiling level of radon decay product, 0.03 WL including background, by considering a range of levels between 0.0 WL above background and 0.05 WL above background. Id. The FEIS-IN shows a residual risk of lung cancer of 5 in 100, which appears to be the top side risk at 0.05 WL above background. Although this is a significant increase in the risk, we cannot say the EPA acted arbitrarily or capriciously or beyond its authority in allowing the higher level and its attendant risk. D Accepting the EPA’s risk calculation estimates and thus its conclusion that the control of the tailings piles will reduce health risks and provide benefits Congress desired, we must now determine whether there existed a reasonable relationship between the estimated benefits of control of the tailings piles and the costs of providing those benefits. We start with the obvious premise that there can be no reasonable relationship in the abstract. As we indicated earlier, Congress’ intent serves to define the reasonableness of any relationship between costs and benefits. Given Congress’ admonition that the EPA recognize as its “paramount responsibility protection of the public health and safety and the environment,” House Conf.Rep. No. 884, supra, at 47, 1982 U.S.Code Cong. & Ad.News at 3592, 3617, we review the EPA’s adoption of the 20 pCi/m2/sec radon emission standard. In the Final Environmental Impact Statement the EPA analyzed the “Benefits Derived From Controlling Uranium Mill Tailings Piles,” specifically considering the benefits that would be provided under various remedial alternatives — ranging from “No Standards” to the EPA’s originally “Proposed Standard.” See I FEIS-IN at 99, Table 6-6. The benefits enumerated were: the probable reduction or elimination of human misuse of the tailings after control; the permanence of the controls inhibiting misuse and erosional spreading; the reduction in vulnerability of the site to flooding; the reduction in the residual risk of lung cancer; the deaths avoided; and the surface water protection provided. The alternative the EPA ultimately selected in the final regulations, a 20 pCi/m2/sec standard, provides significant benefits, meeting Congress’ concern that the standard protect the public health, safety, and environment. The selected standard and its corresponding control method, see I FEIS-IN at 91, according to the Final Environmental Impact Statement, will most likely prevent misuse of the tailings for over a thousand years, prevent erosional spreading for many thousands of years, leave no sites vulnerable to flooding, reduce residual risk of lung cancer by over 95%, avoid 190 deaths in the first 100 years of protection, and protect surface water from contamination for many thousands of years. I FEIS-IN at 99, Table 6-6. The environmental petitioners criticize the validity of the final radon emission standard for not “preventing or minimizing” diffusion of radon into the atmosphere. See 42 U.S.C. § 7901(a) & (b)(1). In the same vein, they also criticize the tenfold increase in the level of emissions permitted by the final standard, an increase from 2 pCi/m2s to 20 pCi/m2s. Despite this significant increase, we believe that the EPA, through its final radon standard, has sought to prevent or minimize radon emission, thus meeting the Congress’ mandate. See I FEIS-IN at 99, Table 6-6, at 101. Given the reduction in risk provided by the final standard, we do not believe that the “tenfold increase” in the level of emissions allowed by the final standard makes that standard unreasonable, even in light of the change. We hold that the final standard is within a zone of reasonableness, see Small Refiner Lead Phase-Down Task Force, 705 F.2d at 525, and a logical outgrowth of the proposed standard, id. at 547. All of the petitioners find fault with the EPA’s suggested longevity requirement for the final radon emission standard — that the standard control emissions to the extent reasonably achievable, have an effective life of 1000 years, and in any case, for at least 200 years. 40 C.F.R. § 192.02(a) (1984). The industry petitioners consider the thousand-year longevity goal unrealistic. The environmental petitioners consider the reduced two hundred-year minimum inadequate, especially in light of the thousand-year proposed standard. We cannot say the final standard fails to accomplish Congress’ goal of long-term stabilization in view of Congress’ command to take costs into consideration. The final standard meets Congress’ desire to avoid the health risks presented by the tailings piles and provide a remedial program that will result in long-term stabilization of the piles. . Congress stressed that the “remedial action must be done right the first time.” H.R.Rep. No. 1480, supra, at 40, 1978 U.8. Code Cong. & Ad.News at 7433, 7467. Given Congress’ expressed desire to have a remedial program that will stabilize the tailings piles and additionally, not require continuous allocations of funds, id., we believe the EPA acted reasonably in promulgating a standard based primarily upon the adoption of a passive measure, an earth covering. The industry petitioners particularly are critical of EPA’s refusal to consider remedial measures that are more dependent upon active controls such as “maintenance” and “monitoring” by the implementing agencies. The EPA did consider such an alternative. I FEIS-IN at 102, Alternative E. But it rejected that alternative upon review of the benefits it would provide. Id. at 98-104, 128-29. Arguably, EPA could have placed more reliance upon the maintenance and monitoring activities of the implementing agencies. Congress, however, did not require it to do so and instead indicated its preference for a more permanent remedial program. The EPA’s understanding of its duty under the statute to rely principally upon passive control is sufficiently rational to withstand our review. See Chemical Manufacturers Association v. National Resources Defense Council, Inc., — U.S.-,-, 105 S.Ct. 1102, 1107, 84 L.Ed.2d 90 (1985). EPA’s cost estimates for remedial action at the mill sites and for off-site cleanup were 158 and 38 million (1981) dollars, respectively. EPA stated that the DOE had estimated its additional costs for program development and management (“overhead”) at 118 million (1981) dollars. The total estimated expenditure was , 314 million (1981) dollars. These figures include both cleanup (off-site) and disposal (on-site) costs. 48 Fed.Reg. at 596. We recognize the tremendous costs that this cleanup program represents. Nevertheless, we cannot condemn as arbitrary the EPA’s determination that these costs bear a reasonable relationship to the benefits to be provided. In fact, in enacting the UMTRCA Congress was well aware of the potential costs of the program. Assessing the economic impact of the legislation in 1978, the House Report stated: “This legislation is not expected to have any significant inflationary impact. Over the next 7 years, 22 tailing sites will be treated at a total cost ranging anywhere from $15 million to $200 million, depending largely upon whether tailings will be treated and stored at their present location or, instead, moved to newly prepared disposal sites. Little of this cost is expected to be incurred during the next 3 years because of the time required to identify and prepare disposal sites. Additional costs may be borne by individual states if new disposal sites are required. But even taking these additional costs into account, the impact of the legislation on inflation and overly [sic] economic performance is expected to be immeasurable [sic].” H.R.Rep. No. 1480, supra, at 47, 1978 U.S. Code Cong. & Ad.News at 7433, 7474. We must defer to the EPA’s finding of a reasonable relationship between the costs and the benefits of the remedial action program for disposal of the mill tailings at the inactive sites. As we have said before in another context, “[w]e are convinced that EPA made a serious, careful, and comprehensive study of the costs which compliance will impose____ If Congress believes that the cost is too high, it can amend the Act. All we say is that EPA has complied with the statutory mandate.” American Petroleum Institute v. EPA, 540 F.2d 1023,1038 (10th Cir.1976), cert. denied, 430 U.S. 922, 97 S.Ct. 1340, 51 L.Ed.2d 601 (1977). VIII There is one area in which we agree with some of the petitioners or the intervenor that the EPA standards are not in compliance with the law or are inadequate and require remand. In its final standards the EPA abandoned its proposed general standards for limits of concentrations of toxic substances in surface and ground water. See 48 Fed.Reg. at 591, 594; see also 46 Fed.Reg. at 2562 (text of proposed standards). The EPA concluded that potential contamination of surface and ground water should be dealt with on a site-specific basis. 40 C.F.R. § 192.20(a)(2) (1984); see also 48 Fed.Reg. at 594 (discussion of final rules). In place of the proposed standard for control of waterborne pollutants the EPA included a guideline, stating that the DOE should assess each site individually and establish any corrective or preventive programs necessary to meet relevant state and federal water quality standards. 48 Fed.Reg. at 591. It stated that those programs should be consistent, to the maximum extent practicable, with the Solid Waste Disposal Act (SWDA), 42 U.S.C. §§ 6901-6986. 48 Fed. Reg. at 591; 40 C.F.R. § 192.20(a)(2) & (3) (1984). We agree with the environmental petitioners and the State of Colorado that by its actions the EPA violated its duty under the statute. In its proposed regulations the EPA stated that there was a problem with water contamination: “There is evidence of limited ground water contamination at some of the inactive sites, but the prospects for long-term contamination have not been fully assessed.” 46 Fed. Reg. at 2560. It then proposed specific standards for water quality generally. Id. at 2559-63. In the final regulations the EPA acknowledges there are problems, 48 Fed.Reg. at 593, but states: “We do not believe that the existing evidence indicates that ground water contamination from inactive mill tailings is or will be a matter of regulatory concern.” Id. at 599. We do not believe that the EPA, in issuing the final regulations, declared that it was wrong before; indeed, by stating that potential contamination should be dealt with on a site specific basis, id. at 594, it acknowledged that problems exist at some sites. The draft Environmental Impact Statement gave little indication of the possibility that the EPA would reject the proposed water standards and adopt a “guidance” outline for the implementing agencies, abandoning any attempt at specific numerical limits of toxic elements. The only statement we could find in the draft EIS that could be construed to indicate consideration of an alternative similar to that adopted is this: “The proposed ground water protection standards could be considered too strict if implementing them would be unreasonably costly or if they would be impossible to apply.” Environmental Protection Agency, Draft Environmental Impact Statement for Remedial Action Standards for Inactive Uranium Processing Sites 8-8 (1980). The explanation of the proposed water quality standard anticipated possible increases in disposal costs to insure against future ground water contamination, but gave no indication that this possibility would make the proposed standards infeasible. 46 Fed.Reg. at 2560. Many of the comments submitted to the EPA during the comment period after publication of the proposed rules suggested that the EPA abandon its proposed ground water standards. See, e.g., II FEIS-IN at D-36, -37, -44, -45, -46. But, regardless of the tenor of some of the comments, the final “guidance” standard does not represent a logical outgrowth from the proposed regulations. In our view when the EPA acknowledged that ground water contamination is a problem at some of the inactive sites, it was required to adopt general standards. The UMTRCA provides that the EPA “promulgate standards of general application.” 42 U.S.C. § 2022(a). The EPA was not to adopt “site-specific requirements.” H.R.Rep. No. 1480, Part I, supra, at 16-17, reprinted in 1978 U.S.Code Cong, and Ad.News at 7433, 7439. By directing the DOE to follow “relevant” state and federal quality standards consistent “to the maximum extent practicable” with the SWDA, see 48 Fed.Reg. at 591; 40 C.F.R. § 192.20(a)(2) and (3) (1984), the EPA was unlawfully delegating to the states or to the DOE its own rulemaking authority or was itself establishing standards that could vary from site to site. We do not agree, however, with Colorado’s argument that an unlawful delegation is involved by the provision of the regulations allowing exceptions from the standards in particular circumstances — permitting the implementing agencies, the NRC and the DOE, to “select and perform remedial actions that come as close to meeting the otherwise applicable standard as is reasonable under the circumstances.” 40 C.F.R. § 192.22(a) (1984). So long as general standards are in place, permitting exceptions for special circumstances in which costs might be outrageous or compliance impossible is not an abrogation of the duty to promulgate general standards. A court could determine, if required to do so, the reasonableness of an exception granted in a specific case. The environmental petitioners also complain that the EPA has a duty to for-muíate general standards for nonradiological hazards, toxic chemicals in the uranium tailings, see 42 U.S.C. § 2022(a), but has not specifically addressed the subject except in conclusory form: “We have reviewed the available data on toxic elements in tailings and improved the FEIS-IN in this respect [Appendix C]. We have concluded that it is reasonable to expect that hazards from toxic elements will be adequately limited if control and cleanup are carried out according to these final standards.” 48 Fed.Reg. at 597. We are satisfied that the EPA’s general regulations on radon emissions, requiring control of the movement of and probable covering of the tail-ings adequately deal with the nonradiological hazards of the toxic chemicals, except as they may enter waterways or underground water supplies. If there is a possibility that toxic chemicals will enter underground water supplies or waterways, the statute mandates that the problem be dealt with by general standards. On remand, the EPA will have to treat these toxic chemicals that pose a ground water risk as it did in the active mill site regulations. IX We reject all challenges to the regulations except as discussed in Part VIII above. The following regulation, concerning water contamination is set aside: 40 C.F.R. § 192.20(a)(2) — (8) (1984). The case is remanded to the agency for further consideration of that specific provision. . The proposed standard for soil contamination read: “(a) the average concentration of radium-226 attributable to residual radioactive material from any designated processing site in any 5 cm thickness of soils or other materials on open land within 1 foot of the surface, or in any 15 cm thickness below 1 foot, shall not exceed 5 pCi/gm.” 45 Fed.Reg. at 27,374. A curie is the amount of radioactive material that produces 37 billion nuclear transformations per second. One pico-curie (pCi) = 10-12 ci. Id. The proposed standard for buildings stated that the levels of radioactivity in any occupied or occupiable building shall not exceed, due to residual radioactive materials from any designated processing site, either: (1) 0.015 WL as an average annual indoor radon decay product concentration, including background; or (2) 0.02 milliroentgen/hour of indoor gamma radiation above background. Id. at 27,374-75. A WL or working level is “any combination of short-lived radon decay products in one liter of air that will result in the ultimate emission of alpha particles with a total energy of 130 billion electron volts.” Id. at 27,374. . Specifically, the proposed standard for the radon emission limit from the tailings pile read: "(a) The average annual release of radon-222 from a disposal site to the atmosphere by residual radioactive materials will not exceed 2 pCi/m-sec.” 46 Fed.Reg. at 2562. A footnote to the standard read: “The radon emitted from a tailings site after disposal will come from the tailings and from materials covering them. Radon emissions from the covering materials should be estimated as part of developing a disposal plan for each site____ After disposal, the radon emission standard is satisfied if the emission rate is less than or equal to 2 pCi/m-sec plus the emission rate expected from the disposal materials." . This standard provides: "(b) Substances released from residual radioactive materials after disposal will not cause (1) The concentration of that substance in any underground source of drinking water to exceed the level specified in Table A, or (2) An increase in the concentration of that substance in any underground source of drinking water, where the concentration of that substance prior to remedial action exceeds the level specified in Table A for causes other than residual radioactive materials. This subsection shall apply to the dissolved portion of any substance listed in Table A at any distance greater than 1.0 kilometer from a disposal site that is part of an inactive processing site, or greater than 0.1 kilometer if the disposal site is a depository site. Table A Milligrams/liter: Arsenic........................... 0.05 Barium........................... 1.0 Cadmium......................... 0.01 Chromium........................ 0.05 Lead.............................. 0.05 Mercury.......................... 0.002 Molybdenum...................... 0.05 Nitrogen (in nitrate) ..............10.0 Selenium ......................... 0.01 Silver............................. 0.05 pCi/Iiter: Combined radium-226 and radium- 228 ............................. 5.0 Gross alpha particle activity (including radium-226 but excluding radon and uranium) ........15.0 Uranium..........................10.0” 46 Fed.Reg. at 2562-63. . “§ 192.02 Standards. Control shall be designed to: (a) Be effective for up to one thousand years, to the extent reasonably achievable, and, in any case, for at least 200 years, and, (b) Provide reasonable assurance that releases of radon-222 from residual radioactive material to the atmosphere will not: (1) Exceed an average release rate of 20 picocuries per square meter per second, or (2) Increase the annual average concentration of radon-222 in air at or above any location outside the disposal site by more than one-half picocurie per liter.” 40 C.F.R. § 192.02 (1984) (footnotes omitted) (emphasis in original). . “§ 192.12 Standards Remedial actions shall be conducted so as to provide reasonable assurance that, as a result of residual radioactive materials from any designated processing site: (a) The concentration of radium-222 in land averaged over any area of 100 square meters shall not exceed the background level by more than— (1) 5 pCi/g, averaged over the first 15 cm of soil below the surface, and (2) 15 pCi/g, averaged over 15 cm thick layers of soil more than 15 cm below the surface.” 40 C.F.R. § 192.12 (1984) (emphasis in original). . In the text of this opinion we refer to American Mining Congress, United Nuclear Corporation, Kerr-McGee Corporation, Kerr-McGee Nuclear Corporation, and Homestake Mining Company as the "industry petitioners.” Although we recognize that some of their arguments differ, most do overlap. . 29 U.S.C. §§ 652(8) and 655(b)(5). . Two discussions, one in the House and one in the Senate, on the conference report may imply that the EPA should make a determination that it must find that radon presents a significant risk. In one, Congressman Lujan stated: “In addition, the conferees’ action is intended to lay to rest suggestions, such as those made by EPA officials to mill operators in my State, that the preamble to the Mill Tailings Act represents a congressional predetermination that a significant risk exists from radon from mill tailings or that particular forms of remedial action must be taken.” 128 Cong.Rec. H8816 (daily ed. Dec. 2, 1982). In the other, Senator Simpson, the bill’s floor manager, discussed the' significance of risks with Senator Wallop. "Mr. WALLOP: ... It is my understanding that EPA and NRC have stated that they felt compelled by the Mill Tailings Act to impose stringent requirements, such as a 2-picocurie radon emanation standard, irrespective of costs, because of language in the preamble to the 1978 Mill Tailing Act. From my reading of the applicable provision, the 1978 act directed the agencies to take ‘every reasonable effort’ necessary to protect public health. Implicit in that language is a direction to exercise reasonable discretion. Have [sic] the amendment dispelled the misapprehension of the agencies on this point? Mr. SIMPSON: I say ... that, in my best estimate, they have. The statement of [the] managers clearly states that it is the agreement of the conferees that EPA and NRC, in promulgating standards and regulations, should exercise their best independent technical judgments. The agencies should determine the risks associated will [sic] mill tail-ings and the significance of those risks. They should also examine various regulatory approaches to deal with significant risks that are identified. Of course, we expect the approach ultimately adopted to be reasonably related to the risks in terms of costs. In short, Congress has not directed any specific regulatory program. On technical issues relating to the regulation of mill tailings, EPA and NRC should both exercise reasonable judgment on the appropriate course to accomplish the basic purpose of the act, which is to protect the public health and safety from unreasonable risks.” 128 Cong.Rec. S13,055-56 (daily ed. Oct. 1, 1982). We recognize the assistance in interpretation that these discussions of the amendments provide. We are constrained, however, by the language of the UMTRCA and the conference report to find that no showing of significant risk is necessary. A colloquy between two House or Senate members cannot change the conference report, it merely is of assistance in interpreting it. See Remarks by Congressman Udall, 128 Cong.Rec. H8824 (daily ed. Dec. 2, 1982) ("... we cannot with a colloquy change the law. We cannot change the conference report. We can indicate what it means and how it is interpreted by Members who served on it.’’). To hold that the EPA must determine that the tailings piles pose a significant risk before regulating would change the entire structure of the statute. It is more reasonable to interpret the quoted comments to mean that the EPA must consider the significance of the risk in weighing the costs and benefits of the alternative standards, a subject we discuss in Part VI. We do not believe that Congress intended the UMTRCA to require the EPA to go through a two-phase analysis of: (1) determining the significance of risk of radon emissions before regulating, and (2) after a significance finding, balancing the costs of the regulations against the benefits (reductions of risks, among other things) of the alternatives. The language of the statute itself and the legislative history of the statute and the amendment are too clear on the need for regulations concerning uranium mill tailings for us to interpret the statute to require a significant risk finding before regulating. Instead, we believe that the alternative that the EPA selects for regulating the piles should reflect the significance of the risk that it believes the piles present. . In the text of this opinion we refer to joint petitioners Sierra Club, Environmental Defense Fund, Natural Resources Defense Council, Southwest Research and Information Center, and Jean Slattery as the "environmental petitioners.” The arguments of the State of Colorado as intervenor and the State of Wyoming as amicus generally parallel those of the environmental petitioners. . Also, discussing the amendments in the Senate with Senator Schmitt, Senator Simpson rejected feasibility analysis for these regulations: Sen. Schmitt: “By requiring a consideration of environmental and economic costs, is my understanding correct that the Senator wants the regulatory agencies to consider more than just the feasibility of their standards and regulations? Mr. SIMPSON. The Senator’s understanding is correct. The direction to consider costs requires more than a perfunctory determination of whether a given cost can be borne by the uranium industry or a particular licensee.” 128 Cong.Rec. S13,055 (daily ed. October 1, 1982). . Senator Simpson indicated that the amendment to the statute did not require an "itemized cost-benefit approach.” He stated: "As indicated in the statement of managers, standards and requirements must bear a reasonable relationship to the expected benefits; that is, the costs to comply should be commensurate with the risks. This is not to say that an itemized cost-benefit optimization approach is required. In balancing costs and risks to assure a reasonable relationship between the two, judgment must be exercised by the agencies." 128 Cong.Rec. S13,055 (daily ed. Oct. 1, 1982) (colloquy between Sen. Simpson and Sen. Schmitt). . The Report stated: "From the early 1940’s through the early 1970’s there was little official recognition of the hazards presented by these tailings. Federal regulation of the industry was minimal. As a consequence, mill tailings were left at sites, mostly in the Southwest, in an unstabi-lized and unprotected condition. Some of these tailings were used for construction purposes in the foundations and walls of private and public buildings. There, through the concentrated emission of radon gas, the hazard of the tailings and public exposure increased substantially.” H.R.Rep. No. 1480, Part I, supra, at 11, 1978 U.S.Code Cong. & Ad.News at 7433, 7434. . This estimate is based upon a linear nonthreshold theory of radiation danger. This theory presupposes that a linear extrapolation of high dose radiation data yields an accurate estimate of low-level radiation risk. Many question this theory of radiation risk. See Management of Commingled Uranium Mill Tailings: Hearings Before the Subcomm. on Procurement and Military Nuclear Systems of the House Comm, on Armed Services, 97th Cong., 2d Sess. 176, 186-87 (1982) (comments on proposed EPA standards). Nevertheless, we believe that, in making policy decisions, the EPA may adopt a linear nonthreshold calculation to compute risks from low levels of radiation. See McGarity, Substantive and Procedural Discretion in Administrative Resolution of Science Policy Questions: Regulating Carcinogens in EPA and OSHA, 67 Geo.L.J. 729, 733-34 (1979). . The industry petitioners also draw our attention to the fact that uranium tailings sites are a “trivial” source of radon in comparison to natural and agricultural releases. This fact may well be true, but it does not prove that uranium mill tailings sites are not a source of radiation risk that Congress instructed the EPA to address. . At one point in the text preceding the final regulations, the EPA stated this risk to be about 3 chances in 100. 48 Fed.Reg. at 597. We analyze the risk estimate as 4 chances in 100, however, because that is what the EPA ultimately concluded to be the risk. Id. at 593, 598. . The Final Environmental Impact Statement states that: “We have estimated local and regional exposure at 6 of the 24 inactive sites (SW81). Although this sample is limited, it includes all important urban sites except Canonsburg, Pa. The remaining piles are in remote areas and collectively have only about one tenth of the local and regional population exposures that these six piles collectively have.” I FEIS-IN at 59. . See 42 U.S.C. § 7912 (processing site designations). . The EPA readily acknowledged the discrepancy in the figures used in Table 4-5 of the Final Environmental Impact Statement. See Letter from Christopher Herman, Brief of American Mining Congress, Addendum F. These discrepancies are as follows: Recalculated City Cited Exposure Level Exposure Level Salt Lake City 0.045 WL 0.04 WL Grand Junction 0.045 WL 0.04 WL Durango 0.026 WL 0.02 WL Rifle 0.007 WL 0.0085 WL Gunnison 0.008 WL 0.007 WL These exposure levels are in turn used to calculate absolute and relative risk estimates. The EPA suggested that this discrepancy resulted from the change in the equilibrium factor from the Draft to the Final Environmental Impact Statement. The EPA also conceded that it overstated the distance from the piles to the nearest residents. It used a figure of 0.5 miles when it should have used 0.1 miles. . The American Mining Congress faults the Ford, Bacon study’s radon measurements because the figures are based on “a single 24-hour sample.” They contend that because of the "variability of outdoor radon levels measurements must be taken over an extended period of time.” They indicate that they would approve of forty-eight hour samples taken at three-week intervals over a twelve-month period. This argument misrepresents the scope of the Ford, Bacon study. It is true that each of the study’s radon measurements in all the various locations at each mill tailings site appears to have extended over a twenty-four hour period. See, e.g., Joint Appendix at 36, 39, 54, 77, 136. Yet it is also true that the EPA consultants used numerous sampling locations at each tailings pile site when they conducted these twenty-four hour measurements. See e.g., id. at 36, 41 (fifteen locations in Durango); 54, 62 (eight locations in Grand Junction); 77, 83 (twenty-six locations in Salt Lake City); 136 (three locations at Spook site in Converse, Wyoming). Any statistician would appreciate that larger sample sizes yield more reliable data. But at some point a study must compromise perfection because of cost and limited time and resources. Here the consultants extrapolated their data using models that took into account existing information on the topography, weather patterns, and local climate of each site as well as the current location and configuration of tailings and residue at each site. See, e.g., id. at 40, 58-59, 79. We think that in these circumstances such a model was an acceptable substitute for periodic samples taken over an extended period of time. The American Mining Congress does not question the validity of the data which comprised the model. It only questions the methodology. We are not scientists; we are generalist judges deciding whether the methods used were reasonable. We have not been presented with any reasons to distrust a twenty-four hour sample but not a forty-eight hour sample. Given the other information in the consultants’ study about variations in radon release at different hours of the day, see, e.g., id. at 39, a cycle covering an entire day and night does not seem arbitrary. Likewise, given information that climate and weather patterns may affect radon release, a model that takes into account variations over an entire year at the particular site seems quite reasonable. . In a claim related to this indoor radon concentration standard, the State of Colorado asserts that the EPA exceeded its authority to set standards of general application and usurped the authority of the states and implementing agencies by allowing the use of sealants, filtration and ventilation devices to provide reasonable assurance of reductions from 0.03 WL to below 0.02 WL. See 40 C.F.R. § 192.20(b)(3) (1984). The regulation provides that: “Residual radioactive materials should be removed from buildings exceeding 0.03 WL so that future replacement buildings will not pose a hazard [unless removal is not practical — see § 192.21(c) ]. However, sealants, filtration, and ventilation devices may provide reasonable assurance of reductions from 0.03 WL to below 0.02 WL.” 40 C.F.R. § 192.20(b)(3) (1984) (emphasis added). We do not read this language as compelling any particular action; instead we read it as suggesting possible alternatives to reduce radon concentration levels. . See I FEIS-IN at 128-29 (Alternative B selected). . EPA’s selected alternative correlates to a three meter earth cover requirement. I FEIS-IN at 91, Table 6-2. In addition Alternative B assumes three of the piles will be moved for flood control reasons. See id. at 91; B-16. . See supra note 3. . Of course, a site with no contamination problems would automatically meet any general requirements the EPA might set without further corrective action.

Association of Pacific Fisheries v. Environmental Protection Agency

KENNEDY, Circuit Judge: In 1972 Congress, intending “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” amended the Federal Water Pollution Control Act (Act), 33 U.S.C. § 1251 'et seq. Congress established national pollution goals to be achieved by specific dates. By July 1, 1977, industries discharging pollutants into the nation’s waters were to have achieved “the best practicable control technology currently available (BPT).” Section 301(b)(1)(A), 33 U.S.C. § 1311(b)(1)(A). By 1983, industry is to achieve “the best available technology economically achievable (BEA).” Section 301(b)(2)(A), 33 U.S.C. § 1311(b)(2)(A). The Environmental Protection Agency (EPA or Agency) was entrusted with the responsibility of defining and policing the efficient and prompt achievement of these goals. Section 304, 33 U.S.C. § 1314. This case involves a challenge to regulations promulgated by the Agency establishing effluent guidelines for the Canned and Preserved Seafood Processing Point Source Category. 40 C.F.R. §§ 408.10 et seq. See also 40 Fed.Reg. 55770 et seq. (Dec. 1,1975). Petitioner Association of Pacific Fisheries is a trade association representing canners and fresh and frozen fish processors in affected subcategories. The remaining petitioners process seafood in all the subcategories at issue on this appeal. The EPA’s regulations governing the fish processing industry were promulgated in two phases. In the first phase, the EPA issued regulations affecting catfish, crab, shrimp, and tuna processors. These regulations were issued on June 26, 1974, and are not challenged by petitioners. Rather, petitioners challenge several of the regulations promulgated during phase II of the Agency’s proceedings. These phase II regulations covered nineteen separate subcategories. The subcategories were determined by the species of fish being processed; whether there was mechanization in the processing technique; for Alaska processors, the location of the plant, i. e., whether the plant was located in a “population or processing center”; and in some cases, the production capacity of the plant. At issue are the regulations which apply to Alaskan hand-butchered salmon (Subpart P), Alaskan mechanized salmon (Subpart Q), west coast hañd-butchered salmon (Subpart R), west coast mechanized salmon (Subpart S), Alaskan bottomfish (Subpart T), west coast bottomfish (Subparts U and V), Alaskan scallops (Subpart AC), and herring fillets (Subparts AE and AF). See 40 C.F.R. §§ 408.160^408.226, 408.290-408.296, 408.-310-408.326. The effluent which is the subject of the regulations consists of unused fish residuals. This discharge includes heads, tails, and internal residuals of the processed fish. Substantial quantities of water are used at various stages of the plant operations. This water comes into contact with the fish residuals and contains pollutants when discharged. The regulations prescribe limitations on discharge, and utilize three measures of pollution: five-day biochemical oxygen demand (BOD 5); total suspended solids (TSS); and oil and grease (O & G). The regulations establish daily maximum levels and monthly average levels for each subcategory, and are measured in terms of the amount of pollutant per thousand pounds of fish processed. The prescribed 1977 BPT for processors not located in Alaska, and Alaska processors located in “population or processing centers,” is the installation of screens to trap the larger fish particles before the effluent is discharged from the plant. Residuals trapped by the screens may be disposed of in ways discussed below. Alaska processors in “remote” locations are subject only to limitations on the size of particles in the effluent, a requirement that can be met by grinding the solids before discharge. By 1983 the fisheries must comply with more rigorous technology requirements and effluent limitations. For nonremote facilities, the Agency directed that a dissolved air flotation unit be installed at each location and that the end-of-pipe effluent be channeled through this system before it is discharged into the receiving water. These regulations apply to all nonremote subcategories except Subpart V, Conventional Bottomfish. There, the Administrator has prescribed aerated lagoons as the BEA. Remote Alaska fish processors will be required by the 1983 regulations to screen the effluent before discharging it into the receiving waters. Scope of Review The scope of our review in cases like this is well-settled and need not be restated at length. Our task is to insure that the Agency has accumulated sufficient material upon which to make a reasoned decision, reviewed that material, and promulgated regulations that are the result of reasoned decisionmaking. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Marathon Oil Co. v. EPA, 564 F.2d 1253, 1266 (9th Cir. 1977); American Meat Inst. v. EPA, 526 F.2d 442, 453 (7th Cir. 1975). A comprehensive discussion of a reviewing court’s role in this area is contained in Weyerhaeuser Co. v. Costle, 191 U.S.App.D.C. 309, 323-27, 590 F.2d 1011, 1024-28 (D.C.Cir.1978) (McGowan, J.). What might be termed a scope of review issue is raised by petitioner’s substantial reliance on evidence accumulated after promulgation of the final regulations and not a part of the record before the EPA. Whether this court may examine such evidence in reviewing the Agency’s actions is addressed below. 1977 Regulations The 1977 regulations raise four broad areas of dispute. First, the petitioners question the Agency’s decision to divide some subcategories into remote versus nonremote locations. Second, the petitioners contend that the cost of operating the required technology is wholly disproportionate to the resulting pollution control benefits, and that both costs and benefits were erroneously calculated by the Agency. Third, the. petitioners argue that the Agency’s data collection and analysis are fatally flawed. Finally, petitioners argue that even with the required technology in place, they will be unable to comply with the 1977 effluent limitations. A. Remote v. Nonremote A large segment of the fishing industry affected by these regulations is located in Alaska. In determining what is the BPT, the Agency concluded that certain Alaska processing facilities not located in “population or processing centers” should be designated “remote” and subject to less stringent requirements. In the population or processing centers, screening is the designated BPT. According to the EPA, the solids trapped by the screens may be transported over land by trucks either to landfills or to other facilities for further processing, such as conversion to pet food, or barged out to sea and dumped at approved locations. Remote locations are not required to screen. Plants in these locations may simply grind the solids before dumping the effluent into receiving waters. The Agency’s definition of a “population or processing center,” as distinct from a “remote center,” makes our review difficult because .it is neither a closed-ended definition, that is, one stated in terms relatively incapable of future expansion, nor one which sets forth the characteristics of the definitional class in any functional way. Rather, the definition simply states that certain locations are population or processing centers, and leaves open the possibility that other places may nevertheless possess certain undefined characteristics justifying designation as population or processing centers by some later determination. The definition is contained in the regulations as follows: “Any . . facility [in this subcategory] located in population or processing centers including but not limited to Anchorage, Cordova, Juneau, Ketchikan, Kodiak, and Petersburg shall meet the following limitations: . . . See, e. g., 40 C.F.R. § 408.162 (Alaskan Hand-Butchered Salmon Processing Subcategory). Petitioners do not contest the Agency’s authority to classify point sources as remote and nonremote locations if the record provides support for such a distinction. They contend, however, that: (a) the record provides no support for the remote/nonremote distinction; (b) even if there is a basis for the distinction, designation of the particular named cities as nonremote is unwarranted; and (c) the definitions of a population center and a processing center are impermissibly vague. The definitional language, as we have indicated, is not commendable for its precision or for the light it sheds upon the Agency’s criteria for determining what is a nonremote location. In view of the evidence before the Agency in this record, however, we cannot say the distinction is entirely unwarranted or arbitrary, and we sustain it as to the specific locations named as population or processing centers. We find somewhat more support for treating as nonremote cities which are population centers, as distinguished from processing centers. Accordingly, we discuss the two aspects of the definition separately. There is evidence in the record indicating that construction costs are significantly less for plants located in population centers than in other areas. A study conducted by the National Canners Association shows that the average costs of construction in Anchorage (population of 173,800) and in Juneau (16,600) are 1.5 and 1.6 respectively (1.0 represents 1971 costs in western Washington). Record 7342 (hereinafter R.). For remote Alaska, the cost is about 2.5. R. 6905, 7342. The Agency could reasonably infer from these data that the costs of constructing and operating pollution abatement technology in remote versus nonremote areas would differ. The record also provides some support for the conclusion that plants located in population centers have more dependable access to transportation and landfills. Finally, the Agency suggested in the record that nonremote locations enjoyed economic advantages such as lower rates for transportation, access to population (reflected in relatively lower wages), and more power. R. 14302. Although more detailed analysis would have been preferable, these items provide support for the conclusion that construction, installation, and operation of facilities required to meet the guidelines is more expensive at remote locations than at population centers. The Agency’s distinction between processing centers, i. e., locations with multiple plants, and remote locations finds somewhat less support in the record, but we are prepared to sustain the Agency’s decision, recognizing that in some later review of this regulatory scheme more specific information may be available either to the Agency or to the industry which might require reconsideration of this distinction. The principal justification for the processing center classification was the finding that there were potential cost savings to plants located in processing centers resulting from the possibility of collective treatment techniques. It is less expensive for plants to share certain disposal costs, such as barging or transportation to landfills or reduction facilities, than if each plant bears them alone. The record indicates that a reduction facility was already in existence in Petersburg, which had the potential for common use, and that four plants in Cordova similarly could employ cooperative barging. By contrast, Agency studies concluded that remote locations would have greater difficulty disposing of waste on lands in part because of undependable land transportation and in part because of geographical conditions making construction and operation of landfills very expensive. We think the assumption that cost savings are available to plants in processing centers is sustainable, at least on the data available when the regulations were initially promulgated. A regulation which recognizes the possibility of pollution treatment through sharing facilities or costs is consistent with the Act. The current definition of a “population or processing center” is admittedly vague. The regulations as written, however, do indicate that population (173,800 for Anchorage and 16,600 for Juneau), plant concentration within the city limits (three phase II plants in Ketchikan and four in Cordova and Petersburg), and relative ease of access to elements which reduce the cost of installing and operating the prescribed technology, are criteria considered by the Agency. We must afford the EPA substantial discretion to implement the mandate of the Act. We would expect that as later category questions arise, the agency will make the definition more precise, and that the more precise definition will have an adequate basis in demonstrated cost savings for waste treatment. We do not, at this point, set aside the Agency’s distinction between nonremote and remote as impermissibly vague. B. Cost-Benefit Comparisons and the Question of Screening The parties dispute whether or not the requirement of screening plus barging or land-based disposal was reached after a proper evaluation of costs and benefits. The disagreement extends both to questions of interpreting the statute and to whether the Agency followed the Act even assuming its own interpretation is correct. Section 304(b)(1)(B) of the Act provides in part: Factors relating to the assessment of best practicable control technology currently available to comply with subsection (b)(1) of section 301 of this Act shall include consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application . We think it plain that, as a general rule, the EPA is required to consider the costs and benefits of a proposed technology in its inquiry to determine the BPT. The Agency has broad discretion in weighing these competing factors, however. See Weyerhaeuser, supra, 191 U.S.App.D.C. at 346, 590 F.2d at 1048. When considering different levels of technology, it must be shown that increased costs are wholly disproportionate to potential effluent reduction before the Agency is permitted to rely on a cost-benefit comparison to select a lower level of technology as the BPT. This conclusion is consistent with the interpretation of section 304(b)(1)(B) given in the Conference Report on the bill which ultimately became the Act. The Report states: The balancing test between total cost and effluent reduction benefits is intended to limit the application of technology only where the additional degree of effluent reduction is wholly out of proportion to the costs of achieving such marginal level of reduction for any class or category of sources. Congressional Research Service, A Legislative History of the Water Pollution Control Act Amendments of 1972 at 170 (1973) (hereinafter L. H.). It is relevant in this case, moreover, to consider the definition of the benefits the Agency is directed to weigh. We agree with the Agency’s contention that Congress intended BPT standards to be based primarily on employment of available technology for reducing effluent discharge, and not primarily on demonstrated changes in water quality. See 40 Fed.Reg. at 55771; EPA v. California, 426 U.S. 200, 204-05, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). Congress was aware that prior enforcement efforts based on water quality standards had not been successful. It determined, accordingly, that the Agency should have the authority to require effluent reduction benefits as defined by the amount or degree of reduction achieved by a level of technology applied to discharge, without the necessity of demonstrating the incremental effect of that technology on the quality of the receiving water. As the D.C. Circuit explained in Weyerhaeuser, supra, 191 U.S.App.D.C. at 339-42, 590 F.2d at 1041-44, the “effluent reduction benefits” referred to in the Act are not primarily water quality benefits; rather, “[e]ffluent reduction occurs whenever less effluent is discharged, i. e., whenever a plant treats its wastes before discharge.” Id., 191 U.S.App.D.C. at 342 n. 49, at 1044 n. 49. In light of these principles, we evaluate the petitioners’ claim that the Agency overestimated the benefits of screening and improperly ignored or underestimated the benefits of grinding. Petitioners assert that grinding should have been considered expressly by the Agency as an alternate technology. It was used by a significant number of plants before the regulations became effective, and the Agency expressly permitted grinding for plants in remote areas. Petitioners assert that the Agency’s failure to consider grinding makes its analysis deficient and invalidates the cost-benefit determination that justifies prescribing screening for nonremote processors. According to petitioners, the record demonstrates that “every ‘adverse environmental impact’ identified by respondent is 'either eliminated by grinding and dispersion or not alleviated by screening at all.” Reply Brief of Petitioners at 11. We do not understand petitioners to dispute seriously that removing solids by screening is superior to grinding in terms of reducing both the total amount of fish solids and pollutants as defined by the measures used by the EPA. Their point, rather, is that the EPA’s determination of BPT must be evaluated by taking into account the methods of disposing of the collected fish products that are permitted by the regulations in question. Petitioners contend that the ultimate reduction in pollution achieved by screening is the same as grinding, since the EPA permits screened solids to be barged and dumped at specified ocean sites located only xh to 2xh miles from the processing plants. We think petitioners’ reasoning is flawed in various respects. Barging of solids for dumping at ocean sites is only one of various waste disposal alternatives permitted. Transportation to landfills or pet food processing plants, where the by-products can be sold to the food processors, are also possible methods of handling collected solids. It was reasonable for the Agency to find that given a choice between barging and transporting to a land-based reduction center, some plants would choose the latter. See 40 Fed.Reg. at 55774. To the extent that screened solids are not returned to the receiving waters, fewer pollutants are discharged, and presumably TSS, BOD and O & G are also reduced. We do not think the EPA is required at this stage of the proceedings to demonstrate that the amount of effluent entering the receiving waters would be reduced to the same degree at each site by application of BPT. The Agency says further that the receiving waters into which it approved discharge of barged solids “are not the same waters” as those used by processors to discharge their ground effluent, because the approved sites are farther offshore. While the petitioners argue that this is irrelevant, there is support for the Agency’s distinction in the legislative history of the Act. The Agency has not explained to this court as clearly as it might have how the asserted water quality benefits of discharging a given amount of effluent farther offshore should be considered within the statutory framework of technology-based, not water quality-based, pollution limitations. But even assuming, contrary to our conclusion in the previous paragraph, that application of the BPT would result in no decrease in the amount of pollutants discharged into receiving waters (both nearshore and offshore), we think that the Act permits the EPA to consider an improvement in near-shore water quality to be an “effluent reduction benefit.” Cf. American Iron & Steel Inst. v. EPA, 568 F.2d 284, 297 (3d Cir. 1977) (affirming Agency’s cost-benefit analysis, noting that Agency considered the harmful effects of pollutants in question). No doubt Congress sought in the Act to do more than simply have the EPA relocate the same amount of effluent discharge, but we doubt that it prohibited the EPA from requiring relocation of that discharge where environmental benefits of such a relocation have been demonstrated. The record contains evidence that because of inadequate tidal dispersion in various locations affected by the regulations, discharges by processors caused aesthetic and environmental harm by forming sludgebeds at or near beaches and shoreline. The Agency cites studies showing such effects at Kodiak, Cordova, Petersburg, and Anchorage. See R. 11567-11614. The Agency also considered a study by the Canadian Environmental Protection Service which indicated that effluent from fish processing facilities can have harmful environmental effects up to one mile from the discharging facility, altering the environmental balance of the receiving waters and creating toxic waste products. See 40 Fed. Reg. at 55771. The dumping sites approved by the Agency are located in deeper waters and in areas of high tidal activity. These factors facilitate dispersion and decomposition of discharged fish solids. The petitioners direct our attention to a study of the Petersburg facilities. The document provides qualified support for the conclusion that the nearshore currents at Petersburg are sufficiently strong to prevent sludgebed accumulations. The EPA counters that the study supports a conclusion that grinding and dispersal nearshore has harmful environmental consequences, in particular because it substantially reduces the oxygen in receiving waters. We do not think, therefore, that the study is conclusive of the petitioners’ contentions even as to the Petersburg site, and in any event it does not demonstrate the regulation is inappropriate for the industry as a whole. We cannot find erroneous the Agency’s conclusion regarding inadequate tidal action and environmental effects of discharge into nearshore receiving waters. It was not an abuse of discretion for the Agency to consider an improvement in nearshore water quality as one factor in support of the effluent limitations. The costs of screening were also considered by the Agency. For example, the Agency projected that for mechanized Alaskan salmon canning plants, “Grinding costs ranged from $30,000 for a 20 ton per-day plant to $54,000 for a 150 ton per-day plant respectively. Screening and barging costs varied from $72,000 to $146,000 for the same plants.” R. 15061-62. The figures for Alaskan Bottom Fish indicate that grinding costs ranged from $20,000 capital outlay and $50/day operation and maintenance (O & M) for a 13.6 ton per day plant to $38,000 capital and $60/day O & M for a 105.6 ton per-day plant. Screening and barging costs varied from $55,000 capital outlay and $150/day 0 & M for the smaller plant to $98,000 capital outlay and $190/day O & M for the larger plant. R. 14859. After estimating the costs for affected subcategories, the Agency concluded the total internal costs of the 1977 effluent limitations would be $6.2 million for investment and $1.3 million of annual expenditures. 40 Fed.Reg. 55777. External costs included a minor effect on prices and the expected closure of some processing plants because of inability to comply economically with the regulations. See id. The effect of these closures on the domestic industry capacity was anticipated to be small. Id. Petitioners argue that the number of plants estimated to close as a result of the regulations demonstrates that the costs of implementing the technology are wholly out of proportion to the effluent reduction benefits, and thus that the regulations do not prescribe a practicable technology. We do not find the Agency’s action can be set aside on this issue. Precisely how many plants in nonremote locations the EPA estimated would close as a result of the 1977 BPT is not completely clear from the record. In the Preamble to the Regulations, 40 Fed.Reg. 55777, the Agency states only that “a number of small plants are projected to be adversely affected by the effluent limitations.” The record shows that in affected subcategories 28 out of 172 plants were projected to close as a result of the 1977 BPT. In its brief, the Agency argues that for several reasons, stated in the record, its original estimate of the number of plant closings was too high. It does not, however, point to any revised estimate. Thus, the most concrete estimate available is that contained in EPA’s Economic Analysis. These data also disclose that in Alaska nonremote subcategories— the Alaska subcategories where screening is the BPT — seven out of sixteen plants were predicted to close as a result of inability to meet BPT. (R. 15055 and 15073). Petitioners agree Congress contemplated that implementing BPT might result in plant closures in some industries. See American Iron & Steel Inst. v. EPA, 526 F.2d 1027, 1052 (3d Cir. 1975). The proportion of plants estimated to close in the nonremote Alaska subcategories (57% for nonremote Alaskan fresh and frozen salmon and 33% for nonremote Alaskan salmon canning) is substantially higher than that approved in some other cases. See, e. g., Weyerhaeuser, supra, 191 U.S.App.D.C. at 345, 590 F.2d at 1047 (summarizing facts in American Paper Inst. v. Train, 177 U.S.App.D.C. 181, 191-92, 543 F.2d 328, 338-39 (D.C.Cir.), cert. dismissed, 429 U.S. 967, 97 S.Ct. 398, 50 L.Ed.2d 335 (1976)) (out of 270 mills and 120,000 people, 8 mills estimated to close and 1800 people laid off; in three subcategories, of 30 mills, 3 estimated to close). The Agency determined, however, that the effect on prices of implementing the BPT would be small: “price increases generally in the range of 0.3 to 0.5 percent are projected,” 40 Fed.Reg. at 55777. It also found that “domestic industry capacity is not expected to be affected by the potential closure of these particular small plants.” Id. The percentage of estimated plant closures in the seafood processing category generally is low. Given these findings, the estimated number of plant closings in the nonremote Alaska subcategories, standing by itself, does not invalidate its cost/benefit analysis or require us to set aside the Agency’s determination that the required technology was practicable. The Agency need not balance the costs of compliance against effluent reduction benefits with pinpoint precision, see Weyerhaeuser, supra, 191 U.S.App.D.C. at 146, 590 F.2d at 1048; American Iron & Steel Inst., supra, 568 F.2d at 297, in part because many of the benefits resulting from the effluent reduction are incapable of precise quantification. Cf. American Petroleum Inst. v. EPA, 540 F.2d 1023, 1038 (10th Cir. 1976), cert. denied, 430 U.S. 922, 97 S.Ct. 1340, 51 L.Ed.2d 601 (1977) (“The value of the resulting benefits is not capable of present-day determination.”). See also Appalachian Power Co. v. Train, 545 F.2d 1351, 1361 (4th Cir. 1976) (“[W]e [reject] Industry’s contention that benefits derived from a particular level of effluent reduction must be quantified in monetary terms . This reflects the simple fact that such benefits often cannot be reduced to dollars and cents.”). The Agency, upon consideration of the effluent reduction benefits thought to be achieved by screening, both the water quality benefits and the amount of pollutants discharged into the receiving waters, determined that the costs of screening were justified. We conclude the Agency complied with the Act’s mandate to consider the costs of technology in relation to effluent reduction benefits. C. Accuracy of the Agency’s Data and Methodology Petitioners argue that important segments of the EPA’s data collection and the analysis which led to formulation of the effluent limitations were erroneous, with the result that the limitations are arbitrary. The petitioners’ objections to the Agency’s methodology are sufficiently well taken so that the Agency should reconsider such matters at the times specified by the statute for review of the regulations. Given the limitations the Agency faced when it adopted industry standards for the first time, we rule that there was a sufficient basis for promulgating the regulations as an initial matter. Under this standard, despite the petitioners’ objections, we think the 1977 effluent limitations were the product of reasoned decisionmaking, adequately supported by information available to the Agency. In determining the effluent guidelines for the subcategories, the Agency employed a model plant analysis. Because the Agency determined that treatment practices in the industry were inadequate, it constructed a model plant utilizing processing data gathered from operating processors during the 1973 season, and financial data from 1968 through 1972. The Agency used peak flow in gallons per minute as the major determinant of the size and cost of treatment equipment which would be required. As we understand petitioners’ challenge, it is that the Agency’s model plant for nonremote Alaskan canned salmon facilities (and presumably other subcategories as well) underestimated the amount of fish processed per hour at actual processors, since the data gathered by the EPA were collected during the 1973 season, an unproductive season not representative of most years. As a result, petitioners say, the model plant analysis underestimated the costs of installing and operating required screening technology. The increased costs would result from the necessity of installing larger screens to handle the greater flow, and possibly also from requirements for more trucks or barges to handle the screened solids. The Agency’s graph representing nonremote Alaskan canned salmon states that the average processing season is 42 days long. Petitioners claim that the average processing season is actually 14 to 30 days long. The graph shows the average working day during the processing season to be 18 hours. Petitioners claim there is only one crew per plant and that the crews rarely work 18 hours a day. The Agency correlated its figures with the annual production rate and determined that large canners processed approximately 8.3 tons per hour, the medium-sized processors 5.0 tons, and the small plants less than 1.1 tons. Petitioners claim that, in fact, large processors on occasion process up to 40 tons per hour, the medium plants 20 tons, and the small fisheries 10 tons. To make petitioners’ claim more concrete, if a large processor had a water flow rate of 2.2 gallons per minute (the EPA figure) and processed 40 tons of raw material per hour instead of the model plant figure of approximately 8, the cost of compliance with the regulations, while perhaps not being exactly five times as expensive as predicted by the EPA, would nevertheless be substantially higher than the predicted figure. The Agency defends the model plant as being designed on the basis of figures obtained from actual processors. The Agency also supports its analysis with at least two further arguments. It first notes that the relation, if any, between tons of fish processed per hour and the cost of installing appropriate screening technology is not linear. One cost comparison made by the Agency indicated that a facility which processes ten times as much fish per hour would probably spend only 1.4 times as much as the small facility for the screening technology. R. 7343-7347. Thus, any underestimation regarding plant production would not affect the Agency’s cost estimations to such a degree that it's analysis must be set aside. The Agency’s other argument is that several of the facilities sampled had or could have had a water use rate of substantially less than 2.2 gallons per pound of raw material, the figure assumed for the model plant. Therefore, even if the tons of raw material processed per hour at a plant were greater than the EPA estimated, its cost figures were not unreasonable estimates, because the plant could process more than 8.3 tons of material per hour using the same flow rate as the model plant, and the cost of installing screens to handle the flow rate would thus be similar to that of the model plant. The Agency may or may not have constructed the model plant with complete accuracy, but that is not the question for this court. After consulting with members of the processing industry and other knowledgeable sources, the EPA engaged in sampling procedures designed to collect representative data given the constraints imposed by time and difficulties of data collection. The court’s treatment of a somewhat similar challenge in American Iron & Steel Inst., supra, 568 F.2d at 300-01, is instructive: The Companies also argue that the EPA’s approach of determining the BPCTCA after calculating the average effluent load at the best plants in each subcategory “permitted [it] to derive limitations from effluent samples without analyzing how these particular treatment levels could be achieved at other plants, or investigating why they were not being [met] by other plants.” But this argument really amounts to a claim that it was “necessarily an abuse of discretion to base the regulations on results obtained from a few plants which were using the best technology” — a claim which was rejected in AISI I, 526 F.2d at 1057. It is true that as long as EPA focuses only on some plants in each subcategory there is a possibility that some differences between plants in the subcategory may be ignored: not all plants within a subcategory are perfectly typical of all plants within the subcategory — even once the industry has been subcategorized in a permissible manner. But petitioners have not made an adequate showing that the plants EPA surveyed do not constitute an adequate sampling of the subcategories they represent. The Agency had relevant information before it and considered this information in formulating its production and cost estimates. We decline to second guess the Agency’s expert determinations as to the model plant, since there is adequate support for those conclusions in the record. The Agency itself recognized that its data collection was not as thorough as it otherwise would have been: “The time constraints imposed by the statutory deadlines precluded the Agency from conducting an exhaustive sampling program.” One of those time constraints was the decision in National Resources Defense Council v. Train, 6 E.R.C. 1033 (D.D.C.1973), rev’d in part and remanded, 166 U.S.App.D.C. 312, 510 F.2d 692 (D.C.Cir.1975). Similarly, some of petitioners’ critique of the Agency’s methodology is simply an elaboration of shortcomings which the Agency itself considered: After identifying representative processing facilities, one of the criteria for selecting a plant for detailed study was physical ease of collecting unit operation and end-of-pipe full shift flow proportioned composite samples. Some facilities would have required plumbing changes to facilitate a detailed sampling effort. Other considerations included individual plant cooperation, labor strikes, and seasonality. Because of the need to obtain the data as rapidly as possible, the sampling effort concentrated on plants which had indicated a willingness and ability to provide the requested data promptly. Even though many companies were very cooperative, labor strikes restricted sampling in some locations. Seasonality or availability of raw materials also restricted the sampling effort in some parts of the country during the time frame of the study. The available historical data which was compatible with the Agency’s sampling and analytical procedures were included in the data base. 40 Fed.Reg. at 55771. Petitioners’ insistence that the amount of fish processed per hour must be the major design parameter for determining the cost of complying with the effluent limitations is based in large part on a study conducted by Dr. James Bray, an employee of the University of Washington. Dr. Bray concluded that significantly more fish are processed per hour in real plants than is reflected in the hypothetical processing load of the Agency’s model plant. The study by Dr. Bray is entitled “Review of ‘Economic Analyses’ of Effluent Guidelines, Seafood Processing Industry,” and is dated August 5, 1976. A similar study relied on by petitioners was conducted by Michael D. Swayne and is dated May 17,1976. Finally, a study conducted by Dr. Lloyd Fisher, also a University of Washington professor, entitled “Statistical Review of the Development Document for Effluent Guidelines and New Source Performance Standards for the [Seafood Industry],” was also released after promulgation of the guidelines. After detailed discussion, all three studies conclude that various statistical and analytical errors by the EPA impugn the validity of the effluent guidelines. Although petitioners raised some questions regarding aspects of EPA’s data collection and analysis during the Agency proceedings, the most telling aspects of petitioners’ critique is based on the analysis contained in the three studies. The analysis was made public after the final regulations were issued and the petition for review was filed, and makes many criticisms which were not brought to the attention of the Agency during the proceedings before promulgation of the regulations. We evaluate petitioners’ arguments based on these studies in order better to understand the issues before us here. The studies, and arguments based thereon, are helpful in understanding the problem faced by the Agency and the methodology it used to resolve it. To a limited extent, therefore, the post-decision studies can be deemed a clarification or an explanation of the original information before the Agency, and for this purpose it is proper for us to consider them. Bunker Hill Co. v. EPA, 572 F.2d 1286, 1292 (9th Cir. 1977). The comments we have already made are to some extent drawn from this supplementary material. We do not think it is appropriate, however, for either party to use post-decision information as a new rationalization either for sustaining or attacking the Agency’s decision. Id. We think, therefore, it is inappropriate to rely on the specific conclusions of those studies to show that the effluent limitations were not the product of reasoned decisionmaking. See FMC Corp. v. Train, 539 F.2d 973, 978 (4th Cir. 1976); American Iron and Steel Corp. v. EPA, 526 F.2d 1027, 1050, 1057 (3d Cir. 1975), mandate recalled, 560 F.2d 589 (1977), cert. denied, 435 U.S. 914, 98 S.Ct. 1467, 55 L.Ed.2d 505 (1978); Portland Cement Ass’n v. Ruckelshaus, 158 U.S.App.D.C. 308, 327, 486 F.2d 375, 394 (D.C. Cir.1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). As the court in American Iron and Steel Inst., supra, said, “We believe that it would be highly disruptive to the administrative process to allow a company to sit back and wait until the regulations were published in final form before coming forth and contending that the agency had failed to consider [certain facts].” 526 F.2d at 1050. If the studies showed that the Agency proceeded upon assumptions that were entirely fictional or utterly without scientific support, then post-decisional data might be utilized by the party challenging the regulation. Cf. American Petroleum Inst. v. EPA, supra, 540 F.2d at 1034. That, however, is not the case here. Viewed as material that illuminates the original decision made by the Agency, the studies in question do not undermine our conclusion that the effluent limitations were the products of reasoned decisionmaking. The Act provides for annual revision of guidelines for effluent limitations-— such as the challenged regulations — promulgated under section 304, 33 U.S.C. § 1314. Section 304(b), 33 U.S.C. § 1314(b). The Act also establishes variance procedures, section 301(c), 33 U.S.C. § 1311(c). The standards promulgated by the Agency governing its exercise of discretion in granting variances to affected processors are similar to those which have been upheld for other industrial categories. See 40 C.F.R. § 408.-162; Weyerhaeuser, supra, 191 U.S.App.D.C. at 336, 590 F.2d at 1038. Moreover, the Act requires review of 1983 regulations every five years after their promulgation, section 301(d), 33 U.S.C. § 1311(d). At these points the Agency will be required to justify its regulations in terms of the more extensive data developed since the regulations were first promulgated. In an appropriate case, moreover, a petition for reconsideration may be filed with the EPA to consider whether evidence such as that offered by petitioners requires the Agency to review its original actions. Oljato Chapter of the Navajo Tribe v. Train, 169 U.S.App.D.C. 195, 515 F.2d 654 (D.C.Cir.1975). Thus, there are mechanisms for the Agency to consider evidence developed after promulgation of the 1977 regulations. D. Pollutant Variability Petitioners challenge further the Agency’s findings as to the causes of variability in the pollutant load. Petitioners claim that even if they install a type of screen recommended by the Agency, many facilities will, at certain times, be unable to meet the effluent limitations specified in the regulations, because the amount of pollutants emitted by affected facilities is subject to extreme variability from causes over which the processors have no practical control. As a result, the petitioners contend, the Agency did not sufficiently demonstrate that the technology can be applied practically to comply with the effluent limitations. A related contention is that the Agency relied improperly on “in-plant process changes” in determining the effluent guidelines. To establish the effluent limitations, the EPA sampled outflows in each subcategory. The measurement of TSS and O & G fluctuated substantially, both among plants in the same subcategory and at various single plants at different times. In the nonremote Alaskan mechanized salmon subcategory, for instance, the TSS measurement varied from 13.2 to 44 per thousand pounds of raw material, and the O & G measurement varied from 3.19 to 29 lbs. per thousand. The daily and monthly maximum limitations established by the Agency are based on the average of these highly variable measurements. The Agency found that the primary cause of variability, in single plants and also among plants in the same subcategory, is disparate water and waste management practices. Petitioners contend that the primary causes of pollution fluctuation are other factors, most of which are uncontrollable, including the species and sexual maturity of the fish being processed, the degree of mechanization in each processing plant, and the condition of fish on delivery to the plant. While the first two factors cited by petitioners do bear upon pollution variability, we cannot say that the Agency was incorrect in concluding that they were insignificant in comparison to fluctuations caused by water and waste management practices. Petitioners focus on the salmon sulpcategories. Despite petitioners’ claim that the species of fish affects the waste-load, the EPA found that on the average, each species of salmon produced the same amount of waste, roughly, one-third of the whole fish. R. 11573, 11587. A study by the National Canners Association also supports this figure. Similarly, the petitioners’ challenge to the Agency’s test for distinguishing between mechanized and nonmechanized plants is not persuasive. The Agency’s basis for distinguishing mechanized from hand-butchered processors is whether the plant uses an “iron chink” machine to butcher the whole fish. Both parties agree that use of the machine causes a significant increase in waste material. Petitioners contend, however, that other machines also contribute to the wasteload, and that the Agency erred in not taking these machines into account in establishing the mechanized subcategory. Petitioners point particularly to the use of can-filling machines in some plants. The petitioners do not, however, cite any study demonstrating that mechanical fillers substantially affect wasteload. Despite the fact that some waste is produced during the canning process, there is no evidence in the record that this factor would account for the variability in the pollution figures. On the contrary, the EPA analyzed the sources of the wasteload in the salmon canning industry and failed to find a significant increase in TSS resulting from the canning procedure. R. 14619-20. The apparent reason is that even though the mechanized fillers spill more fish meat than hand packing operations, the spilled meat is recaptured at patching tables where light cans are hand filled with extra meat. R. 14756. The Agency agreed with petitioners that the sexual maturity of the fish and the condition of the raw material on delivery to the processing facility (fresh vs. old and hard vs. soft) are uncontrollable factors which can affect plant raw waste loads. 40 Fed.Reg. at 55773. It contends, however, that by sampling effluent at specific plants over several weeks, it was able to take into account the variability in a plant’s statistics caused by this factor. In other words, the Agency has determined that the effluent guidelines can be met, even though a plant’s raw waste load may vary from day to day because of the condition of the fish on delivery to the plant. Within the limitations of the Agency’s data gathering procedures — limitations which we have already held do not require setting aside the guidelines — the Agency’s data collection would appear to have taken into account variability caused by the condition of the product upon delivery to the plant. The guidelines contain, moreover, both daily and monthly limitations, and the daily limitation permits unusually high discharges of effluent as long as the monthly limit is met. As noted, the Agency determined that the major cause in variable pollution loads was the difference in waste and water management practices at single plants and between different plants in the same subcategory. The Agency focused on water use as the major treatment procedure, in addition to screening, which would enable plants to meet the guidelines. It concluded that “The seafood processing industry in general, and particularly the Alaskan processing facilities, ignores all concepts of water conservation.” In the course of collecting data, the EPA observed the following water management practices: (a) In some plants hoses were used continuously during some shifts to wash down an area of waste buildup, but were not used on every shift or day of operation; (b) Water was observed to run through many machines or stations even though they were not processing fish; (c) In many cases pumps were not flow regulated, therefore requiring large amounts of water to prevent the loss of vacuum; (d) Some plants did not shut off or reduce water flow during rest breaks . 40 Fed.Reg. at 55773. Petitioners agree with respondent that “there is extensive water use” by some processors, and agree that “excessive water use should be reduced.” Brief of Petitioners at 35. Their contention, discussed later, is that turning off the water at the times suggested by the EPA and employing spring-loaded hose nozzles, 40 Fed.Reg. at 55773, will not assist processors in meeting the guidelines. For now, however, the important point is that petitioners have not contended that many of the water use practices recommended by the Agency are either impracticable or extremely costly. Our first conclusion is that it is permissible for the Agency to base its cost calculations and effluent guidelines on the assumption that processors will use 2.2 gallons of water per pound of raw material. The figure was the average flow rate at plants sampled by the Agency and by the National Canners Association in an earlier study relied on by the Agency. See American Iron and Steel Inst., supra, 568 F.2d at 300, 305-06 (noted by the court in Weyerhaeuser, which dealt with a similar water use challenge). The Agency does not require operators to use a specific quantity in gallons per pound of raw material. See Weyerhaeuser, supra, 191 U.S.App.D.C. at 357, 590 F.2d at 1059. Processors may, if they wish, install somewhat more extensive and expensive screens and use a flow rate greater than the Agency norm. We find, as did the court in Weyerhaeuser, that the EPA could determine that processors could practicably reduce their water use to a given gallon amount per pound of raw material. In determining the effluent guidelines and the cost of complying with those guidelines, the Agency could assume that plants in affected subcategories would use the flow rate ascribed to the model plant, despite some observed variability in the amount of water used by different processors. This problem differs from that addressed by the court in Marathon Oil Corp. v. EPA, 564 F.2d 1253 (9th Cir. 1977). There, in a case involving a challenge to the terms contained in a discharge permit, the Agency imposed an absolute limit on the number of pounds of pollutant that could be discharged from a drilling rig per day, despite the large variance in the amount of effluent flow from the decks in question. The court set aside the single-number limit. 564 F.2d at 1269-70. In our case the Agency has not regulated permissible discharge by setting a pound limitation that is independent of the production rate. The limitation is, instead, proportional to the production rate and, as it was based on adequate support, is not an arbitrary limit. The variability was much greater in FMC Corp. v. Train, 539 F.2d 973 (4th Cir. 1976), than in the case at bar. Whereas the gallons per pound of product ranged from .3 to 5 in one synthetic subcategory, id. at 980, the largest range in the EPA’s data for the salmon subcategory was 2.19 to 2.45. See Weyerhaeuser, supra, 191 U.S.App.D.C. at 358 n.87, 590 F.2d at 1060 n.87 (distinguishing FMC on similar grounds). Although the National Canners Association study found the gallons per pound of raw material to be as low as .58, this variability would tend to favor the processors since the regulations were based on the higher figures collected by the EPA. Further, it does not appear from the FMC opinion that the Agency attempted to provide any reason for the extreme variability. In the present case, however, the EPA has provided a reasonable explanation for the variability in pollutant and water use measurements: the cheapness of using even large amount of water and inattention of the industry to water management practices. For these reasons, this case is not inconsistent with the court’s ruling in FMC regarding statistical variability. The Agency did not appear to make extensive findings regarding the extent to which individual plants in a subcategory could reduce their pollutant loads by reducing water use in the ways suggested in the Federal Register. It did, however, determine that by employing the suggested water practices where appropriate, water/solids contact, and thus pollutant load, could be reduced substantially. See, e. g., R. 14749-50. In addition, data collected at a mechanized salmon plant indicated that water use during cleanup operations constituted about 20% of the plant flow and 10% of the total BOD and TSS. A similar study at a hand-butchered salmon cannery indicated that water use during cleanup was about one-third of the total flow, and was responsible for about one-third of the BOD 5 and TSS measurements. R. 14619-20. Petitioners state that “The water reduction outlined [by the Administrator] will not affect effluent loads — and it is effluent load which affects the ability to meet the effluent guideline numbers.” Brief of Petitioners at 36. The reason, contend petitioners, is that the recommended water reductions occur at times when the water does not come into contact with the fish solids, and thus no additional pollutants are created by the excessive use. We find, contrary to the petitioners’ argument, sufficient evidence in the record to support the Agency’s findings that water control will substantially reduce effluent load. More serious are the petitioners’ questions regarding the waste management practices suggested by the Agency. The Agency referred, for instance, to “dry cleanup methods such as shoveling solid waste into bins prior to water cleanup” and using conveyor belts instead of water to transport the waste. The Agency has noted that processors can effect substantial pollution reduction by the adoption of better waste management practices. Petitioners contend such a change would require substantial redesign of many processors’ operating facilities at a great cost, and that therefore these recommendations constitute “in-plant process changes” which are beyond the authority of the Agency to enforce, absent a finding that they are normal practice within the industry. Weyerhaeuser, supra, 191 U.S.App.D.C. at 357, 590 F.2d at 1059; FMC, supra. The Agency did state that “good housekeeping” measures were considered normal practice within the industry, 40 Fed.Reg. at 55773. But the Agency also found that water and waste management practices in the seafood industry were generally inadequate, and found that “none of the plants” in the mechanized salmon subcategories employed any waste management practices. While a finding of general inadequacy is not necessarily inconsistent with the conclusion that good housekeeping measures were considered normal practice within the industry, neither are the two statements easily reconciled. We understand the Agency’s position to be that such waste management practices are not an element of BPT and are not required in order to meet effluent limitations. We agree with this conclusion. The model plant, which formed the basis for the limitations set by the Agency, did not employ such waste management practices. Were the Agency to rest its regulations on the premise that BPT required extensive waste management changes, we would face the question whether or not such technologies constitute in-plant process changes that are beyond the authority of the Agency to require for its 1977 limits. If we faced that issue, the Agency might successfully contend that waste management is simply an aspect of a treatment of end-of-pipe discharge and not a part of the manufacturing process. The argument would be that inasmuch as fish Waste products must be discarded and are directly in the channel of the effluent discharge, its disposal is properly viewed as effluent treatment apart from the existing manufacturing process. See American Iron & Steel Inst., supra, 568 F.2d at 306. We need not, however, reach that question since the effluent limitations can be supported by the Agency’s findings and conclusions relating to the flow rates at the model plant. As with other aspects of petitioners’ challenge, it seems to us that the variance procedures and periodic statutory review mechanisms are adequate vehicles to correct whatever errors the Agency made in its initial, admittedly not completely thorough, effort to formulate effluent guidelines. The Agency must, in good faith, be receptive to whatever new evidence petitioners may bring forth regarding the accuracy of the Agency’s initial regulations, and to adjust its guidelines if the evidence shows petitioners’ inability to comply with them. 1983 Regulations The regulations promulgated by the Administrator for 1983 are to reflect the “best available technology economically achievable.” Section 301(b)(2)(A), 33 U.S.C. § 1311(bX2)(A). For the regulations to be affirmed, the Agency must demonstrate that the technology required is “available” and the effluent limitations are “economically achievable.” A. Dissolved Air Flotation Unit. A dissolved air flotation unit is the prescribed technology for the following subcategories: west coast hand-butchered salmon (Subpart R), west coast mechanized salmon (Subpart S), non-Alaskan mechanized bottomfish (Subpart V), and non-Alaskan herring fillet (Subpart AF). The system operates as follows: Effluent passes into a holding tank. Air enters the effluent under pressure and attaches to solid particles. Buoyed by the air, the particles rise to the surface and are skimmed off. The particles can be used as animal feed or fertilizer. The clarified water is withdrawn from the bottom of the tank. Before entering the receiving waters, this effluent remainder must be within certain maximum limitations. The regulations set forth limitations for BOD 5, TSS, O & G, and acidity for each category. The numerical limitations were based on the assumption that a DAF unit will reduce BOD b by 75%, TSS by 90%, and O & G by 90%. Petitioners claim these figures were the result of a single study conducted by the British Columbia seafood industry in conjunction with the Canadian Fisheries Research Board. The study measured the amount of reduced pollutants in the effluent from a salmon processing plant. The DAF unit reduced the BODb by 80%, the TSS by 90%, and the oil and grease by 95%. Petitioners argue that the Agency was arbitrary and capricious in basing its 1983 technology regulations on a single study. The legislative history of the 1983 regulations indicates that regulations establishing BEA can be based on statistics from a single plant. The House Report states: It will be sufficient for the purposes of setting the level of control under available technology, that there be one operating facility which demonstrates that the level can be achieved or that there is sufficient information and data from a relevant pilot plant or semi-works plant to provide the needed economic and technical justification for such new source. L.H. at 798; FMC, supra, 539 F.2d at 983-84; American Iron & Steel Inst., supra, 526 F.2d at 1058. Although only one salmon study was in the record, the Administrator also considered numerous other DAF studies involving herring, groundfish, stickwater, sardines, shrimp, tuna, mackerel, scabbard, yellow croaker, and menhaden bailwater. Each of these studies revealed a substantial reduction in pollution levels. Although the pollution reduction in some studies was not as dramatic as others, the EPA is not charged with burden of showing that all DAF units could meet the limitations, but rather that the best existing DAF units can meet the limitations. Further, to the extent that some of these studies are best viewed as implicating “transfer technology,” the Agency did not misuse its discretion in finding the technology to be transferable to the subeategories at issue. See generally Weyerhaeuser, supra, 191 U.S.App.D.C. at 351 n. 70, 590 F.2d at 1054 n. 70; C & H Sugar Co. v. EPA, 553 F.2d 280, 286 (2d Cir. 1977). The EPA’s data base was sufficient to show that the technology required to meet the 1983 limitations is “available.” See American Iron and Steel Inst., supra, 526 F.2d at 1062. As with the 1977 limitations, the petitioners have submitted various studies that were not made part of the administrative record and were conducted after the final regulations were promulgated. These studies include new data allegedly demonstrating that the DAF units will not achieve the 1983 limitations. As discussed above, this court will not consider evidence for the first time on review that should properly have been submitted to the Agency for its consideration. There are ways, described earlier in this opinion, for petitioners to bring these studies to the Administrator’s attention. The next question is whether the Agency properly evaluated the costs of meeting the 1983 guidelines. In describing the role of costs in promulgating BEA, the Conference Report stated: While cost should be a factor in the Administrator’s judgment, no balancing test will be required. The Administrator will be bound by a test of reasonableness. In this case, the reasonableness of what is ‘economically achievable’ should reflect an evaluation of what needs to be done to move toward the elimination of the discharge of pollutants and what is achievable through the application of available technology — without regard to cost. L.H. at 170. Although the wording of the statute clearly states that the 1983 limitations must be “economically achievable,” there is some disagreement among the circuits as to whether the costs of compliance should be considered in a review of the 1983 limitations. Compare Appalachian Power Co. v. Train, 545 F.2d 1351, 1361 (4th Cir. 1976) with American Iron and Steel Inst., supra, 526 F.2d at 1052. We hold, in agreement with the court in Weyerhaeuser, supra, 191 U.S.App.D.C. at 342-43, 590 F.2d at 1044-45, that the EPA must consider the economic consequences of the 1983 regulations, along with the other factors mentioned in section 304(b)(2)(B), 33 U.S.C. § 1314(b)(2)(B). See also Appalachian Power Co. v. Train, supra, 545 F.2d at 1361; American Iron & Steel Inst., supra, 526 F.2d at 1051-52. Petitioners maintain that the Agency must balance the ecological benefits against the associated costs in determining whether the technology is economically achievable. They cite in support of this proposition Appalachian Power Co. v. Train, supra. In remanding the 1983 regulations affecting electrical power companies, the court there stated: [I]n choosing among alternative strategies, EPA must not only set forth the cost of achieving a particular level of heat reduction but must also state the expected environmental benefits, that is to say the effect on the environment, which will take place as a result of reduction, for it is only after EPA has fully explicated its course of conduct in this manner that a reviewing court can determine whether the agency has, in light of the goal to be achieved, acted arbitrarily or capriciously in adopting a particular effluent reduction level-. Id. at 1364-65 (footnote omitted). According to petitioners, the Agency did not consider the incremental benefit to the environment to be achieved by the dissolved air flotation units, and the regulations must be set aside. We cannot agree. As noted by the court in Weyerhaeuser, supra, 191 U.S.App.D.C. at 342-43, 590 F.2d at 1045-46, the language of the statute indicates that the EPA’s consideration of costs in determining BPT and BEA was to be different. In prescribing the appropriate 1977 technology, the Agency was to “include consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application.” Section 304(b)(1)(B) (emphasis added). In determining the 1983 control technology, however, the EPA must “take into account ... the cost of achieving such effluent reduction,” along with various other factors. Section 304(b)(2)(B). The conspicuous absence of the comparative language contained in section 304(b)(1)(B) leads us to the conclusion that Congress did not intend the Agency or this court to engage in marginal cost-benefit comparisons. See, e. g., American Iron & Steel Inst., supra, 526 F.2d at 1051. The intent of Congress is stated in 33 U.S.C. § 1251(a)(1): “[I]t is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985 . .” The regulations that will be applied in 1983 are intended to result “in reasonable further progress toward the national goal of eliminating the discharge of all pollutants . . . .” 33 U.S.C. § 1311(bX2)(A). These express declarations of congressional intent cannot be ignored in determining the reasonableness of the 1983 regulations. So long as the required technology reduces the discharge of pollutants, our inquiry will be limited to whether the Agency considered the cost of technology, along with the other statutory factors, and whether its conclusion is reasonable. Of course, at some point extremely costly more refined treatment will have a de minimis effect on the receiving waters. Cf. Appalachian Power Co., supra, 545 F.2d at 1364, 1365. But that point has not been reached in these BEA regulations. The record discloses that the Agency studied the cost of complying with the 1983 regulations. R. 14809. It set forth the cost of compliance for plants that produced various amounts of effluent per minute, both in terms of capital costs and operation and maintenance costs. R. 14810. The projections include estimates of the costs of construction, labor, power, chemicals and fuel. R. 14806. Although land acquisition costs were not considered, the amount of land necessary for the air flotation unit is minimal. In contrast to our conclusion regarding aerated lagoons, the Agency was not arbitrary in concluding that the DAF unit could be installed on existing plant locations without necessitating additional land acquisitions. See R. 15039. Finally, it does not appear that the cost of complying with the 1983 regulations is unreasonable. The cost of compliance for the Northwest Canned Salmon subcategory, for example, is estimated to be $157,000 for initial investment and $32,000 of annual expenditures for the average size plants. R. 14820. According to the EPA’s economic analysis, the total annual costs of pollution abatement averaged between one and two percent of the total sales figures of each subcategory. R. 15074-75. Depreciation is available for the capital outlays and tax deductions are available for business expenses. The Agency concluded that the benefits justified the costs, and petitioners have not shown that conclusion to be arbitrary or capricious. See American Iron & Steel Inst., supra, 526 F.2d at 1052-53. Although the number of plants estimated to close as a result of the 1983 regulations was not stated clearly to us, it appears to be a lesser proportion of affected plants than that which we approved for the 1977 regulations. See R. 15072-77. Since Congress contemplated the closure of some marginal plants, we do not consider the regulations to be arbitrary and capricious. For these reasons, we conclude that the 1983 regulations requiring dissolved air flotation units for West Coast fish processors should be upheld. B. Aerated Lagoons The aerated lagoon is the required technology for the non-Alaskan conventional bottomfish subcategory. 40 C.F.R. § 408.-213. Aerated lagoons are still ponds in which waste water is treated biologically. They are usually three to four feet deep. With oxidation taking place in the upper eighteen inches, the water will remain in the lagoon from three to fifty days. Mechanically aerated lagoons are between six and twenty feet deep and receive oxygen from a floating aerator. R. 14796. Because of the length of detention time, the lagoons must be large in relation to the square footage of a processing plant to handle peak wasteload production. Petitioners contend that the data are insufficient to determine if the limitations are achievable. The Agency relied on one study conducted with perch and smelt wastewater. R. 3043 et seq. Although the record also makes a vague reference to a shrimp processing lagoon in Florida, the record contains no information about its similarities to or differences from the technology at issue.- The record does not disclose the analytic approach utilized, the transferability of the technology, or even the person or persons who conducted the study. Therefore, we limit our discussion to the smelt and perch wastewater study. Although the 1983 regulations can be based on information from a single model plant, see discussion supra, the study must demonstrate the effectiveness of the required technology. The smelt perch study does not reach this standard. The study measured the BOD 5 and TSS contained in the wastewater before entry to the lagoon (BOD 5 4.5, TSS 2.3), but the record reveals only the reduction in BOD 5 in the effluent leaving the lagoon. R. 3044. Although the BOD 5 level would comply with the 1983 limitations, there is no indication as to whether the TSS and O & G levels would be sufficiently reduced. The Agency is charged with the duty of articulating the reasons for its determination. See Appalachian Power Co. v. EPA, 477 F.2d 495, 507 (4th Cir. 1973). Since there are no data upon which to determine that the TSS and O & G levels will be reduced sufficiently to comply with the 1983 limitations, we remand these regulations to the Agency for further findings. The final question presented is whether the Agency gave adequate consideration to costs in the determination that aerated lagoons are achievable technology. The major disadvantage of aerated lagoons is that they require large amounts of readily-accessible land. R. 14796. The Agency did not consider the cost of acquiring land in determining the economic impact of the regulations, R. 15039, 15043. The reason given for this omission is that the costs of acquiring land are “site-specific” and vary depending upon the location and surrounding area. Although this may be true, it does not follow that the cost of acquiring land should be completely ignored in determining whether the technology is achievable. Where a significant amount of land proximate to a plant is an inherent requirement of a control technology, the Agency must attempt to determine the economic impact of acquiring the land. The Agency may set forth the amount of land necessary for various size plants, the average cost of land in the vicinity of identified processing plants, and, finally, whether it is reasonable to conclude that land will be available for the aerated lagoons. We recognize this holding may be at odds with American Iron and Steel Inst. v. EPA, 526 F.2d 1027, 1053 (3d Cir. 1976). The court there determined that the cost of land acquisition should not be considered because it is “inherently site-specific” and that petitioners have the burden of showing “the magnitude of these excluded costs factors.” Id. at 1053. We respectfully disagree on both counts. The Agency has successfully projected other average costs that might be termed “site-specific” such as the cost of in-plant process changes, the cost of barging and screening and the cost of other control technology. Each of these costs is subject to variability, depending on plant design and location. R. 15210. Similarly, when a significant amount of land is required for implementation of the regulation, we think the Agency must take land availability or land cost into account in some manner before it can make a reasoned determination that the regulations are economically achievable, especially when actual plant sites can be studied for this purpose. Failure to do so results in an incomplete consideration of the economic impact of the regulations. This is especially true where, as here, it appears many plant sites are located on waterfront areas where proximate land is not available or is in all probability expensive. That the cost or practicality of acquiring land is difficult to discern does not excuse the Agency from making some estimate of those factors. The amount of land necessary for this control technology is quite significant, and we think it is essential that the Agency give express consideration to that aspect of the 1983 regulations. The burden of proving the measure of the excluded costs should not be placed upon the industry. It is the Agency’s duty to “fully explicate its course of inquiry, its analysis, and its reasoning.” Tanner's Council of America, Inc. v. Train, 540 F.2d 1188, 1191 (4th Cir. 1976). The record clearly states that aerated lagoons will require large amounts of land. R. 14796. The agency must show that the regulations are achievable. These regulations, based on data that fail to consider land acquisition cost or availability, are not the result of reasoned decisionmaking. We therefore remand the regulation requiring aerated lagoons to the Agency in order that it may promulgate new 1983 regulations for the non-Alaskan conventional bottomfish subcategory. The remaining regulations are sustained upon the reasoning set forth above. AFFIRMED in part and REMANDED in part. . The Agency has adopted a multiple-phase approach to promulgating regulations for an industry in other cases, see, e. g., Weyerhaeuser v. Costle, 191 U.S.App.D.C. 309, 318-19, 590 F.2d 1011, 1020-21 (D.C. Cir.1978). . BOD 5, five-day biochemical oxygen demand, is a measure of the oxygen-consuming potentialities of organic matter in the effluent. The BOD 5 test measures the extent to which the biological degradation of organic waste matter over a five-day period removes oxygen from the water. This test does not identify what kind of organic material is present in the effluent, but merely indicates the presence of biodegradable matter. TSS describes the quantity of undissolved solid matter suspended in the effluent. As with BOD, the TSS measure does not identify the nature or the physical and chemical characteristics of the matter present in the effluent. Oil and grease describes the volume of naturally-occurring fish oil in the effluent. . Although the Agency prescribed screening as the BPT, “processors may select alternative methods ... to meet the published effluent limitations.” 40 Fed.Reg. at 55774. . With regard to both the 1977 and 1983 guidelines, the Agency suggested that certain in-plant process changes would be made at affected plants. We discuss this aspect of the case below. . The remote/nonremote distinction was first developed during hearings on phase I of the EPA’s development of regulations for the canned and preserved seafood processing industry. . Petitioners do not contest the Agency’s determination that grinding is appropriate for remote Alaska locations. Their dispute is with the Administrator’s conclusion that facilities in nonremote locations must meet more stringent requirements. . The following exchange occurred between Senator Stevens of Alaska and Senator Muskie: Mr. STEVENS. The Committee on Commerce adopted a position that the disposition of waste from the fishing activities back into the ocean is not pollution. I do not see that in this bill. That is my point at this time. The bill is couched in terms of discharge into the territorial sea, and we, in fact, do discharge the portion of the fish remaining . when they are cleaned, the heads and the tails, as they are processed. We do not consider that pollution. Mr. MUSKIE. I assume it depends on where it is discharged. If it were in my backyard, it would be pollution; if it were in an estuary otherwise crowded with other activities, it might be pollution. If it were discharged several miles off the coast, it might be considered otherwise. Mr. STEVENS. I beg to call the chairman’s attention to page 152. I thought that was the agreement, but section 402 covers the waters of the contiguous zone, or the oceans, and that is beyond that 3-mile limit. We- had an agreement on the contiguous zone and the estuary water. We had an agreement in the Commerce Committee that when we dump outside of the bays, where there is tidal action, it is not a pollutant. In the bays, I agree that it may be a pollutant, but outside, where there is tidal action, it is not a pollutant. Perhaps it is something that can be worked out, but I would like to be certain that the agreement we have worked out in the Commerce Committee would be reflected in this bill as it goes into conference. We are not seeking to pollute anything. We are seeking to dump natural waste of fish back into the ocean bottom, where it is not a pollutant. L.H. 1347^18. . Congress was clearly concerned in the Act with the failure of prior water quality based pollution statutes.. See Weyerhaeuser, supra, 191 U.S.App.D.C. at 338—42, 590 F.2d at 1040-44. The shift in the Act to technology based pollution limitation was an effort to free the EPA from the necessity of proving in every case that application of an effluent limitation at a specific site will improve water quality at that site. Id. We doubt, however, whether Congress meant to prohibit the EPA from considering the subcategory-wide water quality impacts. . We decline at this time to discuss the extent to which, if the EPA relies on water quality evidence in measuring the benefits of requiring a particular technology for a category or subcategory of point sources, it must also consider water quality evidence at particular sites in passing on applications for variances. . The figures for these subcategories are: Segment/size (tons per day) No. of plants_ EPA Estimated closures attributed to BPT EPÁ Estimated closures attributed to BPT and BAT Alaskan Fresh and Frozen Salmon (non-remote) 10 TPD 3 3 3 10-20-TPD 2 1 1 20 TPD 2 None None Segment/size (tons per day) No. of plants EPA Estimated closures attributed to BPT EPA Estimated closures attributed to BPT and BAT Alaskan Salmon Canning (non-remote) 50 TPD 8-3 8 50 TPD 1 None None . We also need not reach the question whether pollution reduction techniques characterizable as in-plant process changes may be required by the Agency upon a finding that they are practicable, or relatively inexpensive, even if they are not now considered normal industry practice. . The regulations regarding Alaskan mechanized salmon and herring fillets were withdrawn by the Agency and are not at issue in this case. . The only subcategories' that exceeded this amount were the Alaskan Fisheries. Since the 1983 regulations affecting these subcategories have been withdrawn, their costs were not considered in determining whether the 1983 regulations were achievable. . The subcategory averages are as follows: Effluent Limitations Effluent characteristic Maximum for any i day Average of daily value for 30 consecutive days shall not exceed (pounds per 1,000 lb. of seafood) BOD 1.2 0.71 TSS 1.5 0.73 Oil and grease 0.077 0.042 pH Within the range 6.0 to 9.0 . BOD 4.5, TSS 2.3.

American Meat Institute v. Environmental Protection Agency

TONE, Circuit Judge. This is a review of effluent limitations promulgated by the Administrator of the Environmental Protection Agency under the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251 et seq., 86 Stat. 816 et seq. (hereinafter “the Act”). Petitioner is the American Meat Institute (“AMI”), whose members operate slaughterhouses and meat-packing plants throughout the country. The regulations under review limit the quantities of various pollutants which these plants can discharge into waterways. Our jurisdiction is invoked under § 509(b) of the Act. The Statute The objective of the Act “is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Section 101(a). The Act sets as national goals the elimination by 1985 of all “discharge[s] of pollutants into the navigable waters,” and the achievement by 1983, “wherever attainable” of a water quality adequate to maintain aquatic life and allow recreational use. Id. As intermediate steps to the 1985 goal, § 301(b) of the Act requires the achievement (1) by July 1, 1977 of “effluent limitations for point sources which shall require the application of the best practicable control technology currently available as defined by the Administrator pursuant to section 304(b) of this Act”; and (2) by July 1, 1983 of “effluent limitations for categories and classes of point sources . . . which (i) shall require application of the best available technology economically achievable for such category or class, which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants, as determined in accordance with regulations issued by the Administrator pursuant to section 304(b)(2) of this Act For convenience, we shall refer to the technology which must be used by 1977 as the 1977 technology, and to that which must be used by 1983 as the 1983 technology. The 1977 and 1983 technologies are to be defined by the Administrator under § 304. Subsection (b) of that section provides that “[f]or the purpose of adopting or revising effluent limitations under this Act,” the Administrator is to publish “regulations, providing guidelines for effluent limitations.” These guidelines are to be promulgated within one year after enactment of the Act, “after consultation with appropriate Federal and State agencies and other interested persons,” and they are to be revised at least annually, if appropriate. The guidelines are to identify, in terms of specific pollutants, “the degree of effluent reduction attainable through the application of” the 1977 and 1983 technologies. Thus, subdivision (1) of § 304(b), referring to the 1977 criterion, requires identification of “the degree of effluent reduction attainable through the application of the best practicable control technology currently available for classes and categories of point sources.” Subdivision (2), referring to the 1983 criterion, requires identification of “the degree of effluent reduction attainable through the application of the best control measures and practices achievable including treatment techniques, process and procedure innovations, operating methods, and other alternatives for classes and categories of point sources . . . .” In connection with both the 1977 and 1983 criteria, the guidelines are to specify “factors to be taken into account” in determining the applicable technology. These factors are to include, for the 1977 technology, “consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application,” and, for the 1983 technology, “the cost of achieving such effluent reduction.” For both the 1977 and 1983 technologies the factors are to include “the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques [and], process changes,” as well as “non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate . . . § 304(b)(1)(B) and (2)(B). Finally, the guidelines are to “identify control measures and practices available to eliminate the discharge of pollutants from categories and classes of point sources, taking into account the cost of achieving such elimination of the discharge of pollutants.” § 304(b)(3). To complement §§ 301 and 304, which govern existing sources, § 306 requires the Administrator to promulgate “regulations establishing Federal standards of performance for new sources” within certain categories of sources. These regulations are to cover only plants on which construction began after publication of proposed new-source regulations for that category. Section 402 adds to the regulatory scheme a permit system for discharges which replaces the permit system formerly administered by the Army Corps of Engineers under the Act of 1899, 30 Stat. 1152, 33 U.S.C. § 407. Permits may be granted by the Administrator provided the discharger complies with all the requirements of the Act, including those of §§ 301, 302, and 306. The Administrator may delegate his permit-granting authority to the states, if they provide sufficient assurances that they will enforce these requirements. Background of the Regulations The regulations before us cover the “Red Meat Processing Segment of the Meat Products Point Source Category.” The common characteristic of the plants in this segment of the meat industry is that they all slaughter animals (but not poultry) and produce fresh meat, which may be sold as whole, half, or quarter carcasses, or as smaller meat cuts. Plants that produce only fresh meat are called slaughterhouses; those that also produce cured, smoked, canned, or other prepared meat products are called packinghouses. Both types of plants usually perform some by-product processing, such as rendering (separation of fats and water from tissue), blood processing, and hide processing. EPA employed North Star Research Institute to study the industrial processes used by slaughterhouses and packinghouses, the wastes generated, and the treatment technologies in use or available to these plants, and to recommend, inter alia, effluent limitations under § 301(b). North Star proceeded to study relevant literature and information on the meat industry it had previously gathered for EPA. In conjunction with AMI, it prepared questionnaires which were distributed to slaughterhouses and packinghouses. From the responses to the questionnaires and information acquired from various other sources, North Star classified the plants into four subcategories and attempted to identify those in each subcategory having the most effluent control. To verify the questionnaire responses, selected plants from these groups were inspected and monitored to a very limited extent. In June 1973, North Star submitted to EPA a report in which the information North Star had gathered was collected and summarized, and analyses and recommendations were presented. After reviewing the North Star report, distributing copies to industry representatives, and receiving their comments, EPA revised the report and published the revision as a Draft Development Document in October 1973. The standards recommended in this document were then incorporated into proposed regulations, which the agency published the same month. Proposed EPA Reg. 40 C.F.R., part 432, 38 Fed.Reg. 29858 (Oct. 29, 1973). After publication of the proposed regulations, EPA received further comments. On February 28, 1974, it promulgated the final regulations which are the subject of this review proceeding. 40 C.F.R., part 432, 39 Fed.Reg. 7894. In addition, a revised version of the October 1973 Draft Development Document was published under date of February 1974 as the Final Development Document (hereinafter sometimes cited as FDD). The Regulations The regulations classify slaughterhouses and packinghouses into the following four subcategories: (1) simple slaughterhouses, which slaughter animals and perform a limited number, usually no more than two, by-product processing operations (subpart A, §§ 432.10 — 432.16); (2) complex slaughterhouses, which slaughter animals and perform several, usually three or more, by-product processing operations (§§ 432.20 — 432.36); and (3) low-processing packinghouses, which not only slaughter animals but process meat from animals killed at that plant into cured, smoked, canned, and other prepared meat products, normally processing less than the total kill (§§ 432.30-432.36); and (4) high-processing packinghouses, which not only slaughter animals but process meat from both animals killed at the plant and animals killed elsewhere (§§ 432.40 — 432.46). For existing sources in each subcategory, the regulations set forth “[e]ffluent limitations guidelines” for 1977, which are apparently intended to constitute both guidelines under § 304(b) and effluent limitations under § 301(b), 40 C.F.R. §§ 432.12, 432.22, 432.32, 432.42. The same is true of the 1983 standards. 40 C.F.R. §§ 432.13, 432.23, 432.33, 432.-43. The regulations limit the discharge of “BOD5,” “TSS,” and ammonia, in addition to other pollutants not involved in this proceeding. Two of these terms require explanation: BOD5. The initials “BOD” stand for “biochemical oxygen demand” and describe pollutants which, when they decompose, deplete oxygen necessary to support aquatic life. BOD5 is BOD measured over a five-day period. TSS. The initials “TSS” stand for “total suspended solids,” which are particles of organic and inorganic matter suspended in the water or floating on its surface. The regulations permit the discharge of certain amounts of BOD5 and TSS per 1,000 pounds (or per 1,000 kilograms) of live weight killed (“LWK”). The 1983 ammonia standard is set in terms of milligrams of ammonia per liter of effluent (mg/1), which shows the concentration of ammonia in the effluent. The regulations challenged in this case are the existing source limitations for 1977 and 1983 relating to BOD5 and TSS, and those for 1983 relating to ammonia. These limitations are set out in the following table: A. Simple B0D5 slaughter- TSS houses Ammonia B. Complex B0D5 slaughter- TSS houses Ammonia C. Low B0D5 processing TSS packinghouses Ammonia D. High B0D5 processing TSS packinghouses Ammonia 1977 1983 Maximum Maximum Dally Daily Average Average for 30 for 30 Consecutive Consecutive Days Days .12 .03 .20 ’ .05 — 4.00 .21 .04 .25 .07 — 4.00 .17 .04 .24 .06 — 4.00 .24 .08 .31 .10 — 4.00 The maximum discharge for any individual day is twice the maximum daily average for any 30 consecutive days. I. Jurisdiction and EPA’s Authority To Promulgate Effluent Limitations Under § 301 At the threshold, we are met with a challenge to our jurisdiction. AMI’s petition for direct review of the existing source regulations is grounded on § 509(b)(1), which provides in pertinent part as follows: “Review of the Administrator’s action . (E) in approving or promulgating any effluent limitation or other limitation under section 301, 302, or 306 . . . may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts such business . . . .” We thus have jurisdiction to review the existing-source regulations before us if they are “effluent limitation[s] . under section 301.” The regulations unquestionably fall within the statutory definition of effluent limitations. Section 502(11) defines “effluent limitation” as “any restriction established by a State or the Administrator on quantities, rates, and concentrations” of discharges from point sources. Furthermore, the preambles to both the proposed and final regulations state that the regulations are promulgated pursuant to § 301 and § 304(b). 39 Fed.Reg. 7894 (1974) (final regulations); 38 Fed.Reg. 29858 (1973) (proposed regulations). Thus, on the surface, there would appear to be no question that the regulations are “effluent limitations” and “promulgated under § 301.” Nevertheless, and although the parties agree that the Administrator had authority to establish these regulations under § 301, his authority has been challenged by amici curiae, who argue that he had authority to issue such regulations as § 304(b) guidelines but not as § 301 effluent limitations. If this is so, our jurisdiction would at best be questionable, since § 509(b)(1), the source of our jurisdiction, does not provide that § 304(b) guidelines are directly reviewable. We therefore must consider whether the Administrator has authority to promulgate existing-source regulations under § 301. While ordinarily we would not allow amici to inject new issues into a case, our continuing duty to satisfy ourselves of our jurisdiction requires us to consider their argument. Amici assert that individual effluent limitations must be established for each existing point source through the permit-issuing process of § 402, using regulations promulgated under § 304(b) as guidelines. Thus, effluent limitations would be set on a case-by-case basis, rather than being prescribed by regulations covering entire subcategories. Under this view, the Administrator lacked the authority to establish across-the-board effluent limitations by regulation, so the regulations were not properly issued as § 301 limitations and are therefore not reviewable here. In essence, this was the position adopted by the Eighth Circuit in CPC International Inc. v. Train, 515 F.2d 1032, 1037 (8th Cir. 1975). In that case, the court held that it lacked jurisdiction to review similar regulations promulgated for a different point source category. The Third Circuit, in American Iron and Steel Institute v. EPA, 526 F.2d 1027, No. 74-1640 (Nov. 7, 1975), has reached an opposite result, as have several district courts. E. I. DuPont de Nemours & Co. v. Train, 383 F.Supp. 1244, 1253 (W.D.Va.1974), appeal pending, No. 74--2237 (4th Cir.); American Paper Inst. v. Train, 381 F.Supp. 553, 554 (D.D.C.1973), appeal pending, No. 74-1544 (D.C.Cir.); American Petroleum Inst. v. Train, No. 74-F-8 at 6 (D.Col., April 8, 1975). In EPA’s view, the Act calls for the setting of across-the-board effluent limitations pursuant to § 301(b), based on guidelines prescribed pursuant to § 304(b). The permit-issuing process, according to EPA, is a mechanism for verifying compliance by each plant and individualizing the effluent limitations to the extent required by the peculiarities of individual point sources. In choosing between these conflicting views, we are guided by the teaching of the Supreme Court in Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975), which arose under the Clean Air Amendments of 1970, 42 U.S.C. § 1857a et seq. The courts of appeals had given varying interpretations of that Act, all of which differed from the one adopted by the agency. Noting that “[t]he disparity among the courts of appeals rather strongly indicates that the question does not admit of an easy answer,” the Court said that while the agency’s construction was not “the only one it permissibly could have adopted, ... it was at the very least sufficiently reasonable that it should have been accepted by the reviewing courts,” 421 U.S. at 75, 95 S.Ct. at 1480, and, further, “sufficiently reasonable to preclude the Court of Appeals [in that case] from substituting its judgment for that of the Agency.” Id. at 87, 95 S.Ct. at 1485. Our inquiry then is not whether the agency’s interpretation of § 301 is the only permissible one, but rather whether it is sufficiently reasonable to preclude us from substituting our judgment for that of the agency.. See also, McLaren v. Fleischer, 256 U.S. 477, 480-481, 41 S.Ct. 577, 65 L.Ed. 1052 (1921). The heart of the controversy is the interpretation of §§ 301, 304, and 509(b). As we have already noted, in providing for direct review in the courts of appeals of “the Administrator’s action . in approving or promulgating any effluent limitation . . . under section 301,” § 509(b)(1) appears to contemplate that the Administrator will adopt effluent limitations under § 301. While § 301 itself does not expressly direct the Administrator to promulgate effluent limitations, subsection (a) of § 301 provides that “[e]xcept as in compliance with this section . . the discharge of any pollutant by any person shall be unlawful”; subsection (b) requires the achievement of certain “effluent limitations for point sources” by 1977 and other “effluent limitations for categories and classes of point sources” by 1983 — language difficult to reconcile with the view that individual effluent limitations are to be set when each permit is issued; and subsection (e) adds that “[e]ffluent limitations established pursuant to this section or section 302 of this Act shall be applied to all point sources . .” Finally, the first sentence in § 304(b) provides that “[f]or the purpose of adopting or revising effluent limitations under this Act the Administrator shall . . . publish . . . guidelines for effluent limitations . . . .” In addition to these provisions, the language of several other sections of the Act relating to effluent limitations supports EPA. Section 302(a) allows, under certain circumstances, stricter effluent limitations than the “effluent limitations required under section 301(b)(2).” See also § 302(c). Section 303(d)(1)(A) requires each state to “identify those waters within its boundaries for which the effluent limitations required by section 301(b)(1) . . . are not stringent enough to implement any water quality standard applicable to such waters.” And § 309(a)(3), (c), and (d) prohibit violations of “section 301, 302 ., or . . of any permit condition or limitation implementing any of such sections in a permit issued under section 402 of this Act . . . .” See also § 316(b) and (c). The reference to limitations in these sections, while not specifying how or by whom they are to be established, is nonetheless “further support for the position that Congress intended the section 301(b) limitations to have an independent existence” apart from the permit process. American Iron and Steel Institute v. EPA, supra, 526 F.2d at 1039. Under § 401(a)(1), applicants for any federal license must obtain state certification that they comply with § 301 or that “there is not an applicable effluent limitation . . . under sections 301(b) and 302 . . .” We find this language especially significant because it cannot be construed as referring to §§ 301(a), (c) or (f), the explanation the Eighth Circuit gave for other references to “effluent limitations under § 301.” CPC International Inc. v. Train, supra, 515 F.2d at 1042-1043. In addition, § 505(f), which defines “effluent standard or limitation under this Act” for purposes of § 505 (the citizen suit provision), includes in the definition, “(2) an effluent limitation or other limitation under section 301 or 302 of this Act,” and “(6) a permit or condition thereof . .” We agree with the courts in American Iron and Steel Institute v. EPA, supra, 526 F.2d at 1038, and E. I. DuPont de Nemours & Co. v. Train, 383 F.Supp. 1244, 1251 (W.D.Va.1974), appeal pending, No. 74-2237 (4th Cir.), that under the interpretation of the Act urged by amici here subsections (2) and (6) of § 505(f) would be redundant, and disagree with the Eight Circuit (CPC International Inc. v. Train, supra, 515 F.2d at 1043) that the reference to § 301 in § 505(f)(2) is to § 301(f). In summary, the most natural reading of the language of the Act is that § 301 is a source of authority to promulgate effluent limitations, independent of the § 402 permit procedure. The legislative history also contains support for the EPA position. Senator Bentsen, a member of the Public Works Committee that reported out the original version of the Act, stated during the Senate debate: “In phase I, for point sources of pollutants, effluent limits shall be established not later than January 1, 1976 [now July 1, 1977], which comply with specifically defined levels of effluent control and treatment. As defined in section 301(b)(1) of the bill, and as elaborated in the regulations which we anticipate the Administrator shall issue pursuant to sections 301 and 304, these . . . goals shall be at least the ‘best practicable control technology currently available’ for [industrial] point sources . . . .” Quoted in Congressional Research Service, A Legislative History of Water Pollution Control Act Amendments of 1972, at 1283 (1973) (emphasis added) (hereinafter “Leg.Hist.”). The Senate Report stated specifically that, “pursuant to subsection 301(b)(1) (A) and section 304(b)” the Administrator is to interpret “best practicable” as a “basis for specifying clear and precise effluent limitations.” Leg.Hist. 1468. Also, during Senate consideration of the conference committee report, Senator Muskie, the principal author of the Act, explained: “[T]he conference agreement provides that each poluter within a category or class of industrial sources will be required to achieve nationally uniform effluent limitations based on ‘best practicable’ technology no later than July 1, 1977. This does not mean that the Administrator cannot require compliance by an earlier date; it means that these limitations must be achieved no later than July 1, 1977, that they must be uniform, and that they will be final upon the issuance of a permit under section 402 of the bill.” Leg.Hist. at 162 (emphasis added). In a written explanation prepared by Senator Muskie and submitted by him to the Senate during the debate on the conference report, he indicated that “practicability” and “availability” are not to be determined on a plant-by-plant basis. Rather, he explained, the conferees intended that “the factors described in section 304(b) [cost, age of equipment, type of manufacturing process, engineering aspects of pollution control techniques] be considered only within classes or categories of point sources and that such factors not be considered at the time of the application of an effluent limitation to an individual point source within such a category or class.” Leg.Hist. 172. Cf. Leg.Hist. 169-170, 254-255. It is unnecessary to multiply these examples. Those we have given are- sufficient to show the reasonableness of the EPA position. Much of the remaining legislative history, including some cited by the Eighth Circuit, CPC International Inc. v. Train, supra, 515 F.2d at 1039-1040, is ambiguous. The ambiguity derives from § 502(11), which defines “effluent limitation” to mean any restriction on discharges established by the Administrator or a state, “including schedules of compliance.” Consequently, statements in the legislative history about the role of the states in setting “effluent limitations” can be read to refer either to target limitations or to schedules of compliance. The EPA position represents a reasonable accommodation of the policies embodied in the Act. On the one hand, nátionwide effluent limits will insure the uniformity Senator Muskie and others stressed. See Leg.Hist. 132, 162, 170, 309, 466-467, 517, 577, 711, 1219, 1405. On the other hand, the states will retain a major role in regulating water pollution, in accord with § 101(b) of the Act. In administering the permit system, the states will have to specify schedules of compliance and determine in some cases whether a variance is justified or whether stricter discharge controls are needed to achieve water quality standards. Thus, the EPA position gives weight to both the policy of uniformity and that of federalism. EPA’s interpretation also avoids anomalies that would result from acceptance of the Eight Circuit’s interpretation of the Act in the CPC case. Under the CPC interpretation, individual EPA permits (§ 402) based on the nationally-uniform guidelines would be directly reviewed in the court of appeals, § 509(b)(1)(F); yet the nationwide guidelines themselves would be reviewed in the first instance by the district court. CPC International Inc. v. Train, supra, 515 F.2d at 1038. Similarly, variances from the 1983 effluent limitations (§ 301(c)) would be directly reviewable in the court of appeals, 515 F.2d at 1043; but the effluent limitations themselves, which apply to “categories and classes” of point sources, would be reviewed initially by the district court. These results conflict with the congressional purpose of using direct review in the courts of appeals to insure expeditious and consistent application of effluent guidelines. See E. I. DuPont de Nemours & Co. v. Train, supra, 383 F.Supp. at 1253-1254. Cf. Leg.Hist. 1503. We conclude that the position chosen by the EPA “was ‘correct,’ to the extent that it can be said with complete assurance that any particular interpretation of a complex statute such as this is the ‘correct’ one.” Train v. Natural Resources Defense Council, Inc., supra, 421 U.S. at 87, 95 S.Ct. 1470, 1485, 43 L.Ed.2d 731. We therefore sustain EPA’s interpretation of the statute, and find that it had the authority to issue effluent limitations under § 301 and that we have the authority to review the regulations under § 509(b)(1). II. The Standard of Review We begin our discussion of the merits by noting the relevant standard of review. Under § 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), agency action in an informal rulemaking proceeding is to be sustained unless “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See also Camp v. Pitts, 411 U.S. 138, 141-142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). This standard requires us to determine whether “the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). We are not to set the effluent limitations ourselves or substitute our judgment for the agency’s. Id.; Portland Cement Association v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375, 402 (1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). Rather, we are to determine whether the limitations set by the agency are “the result of reasoned decision-making.” Essex Chemical Corp. v. Ruckelshaus, 158 U.S.App.D.C. 360, 486 F.2d 427, 434 (1973), cert. denied sub nom., Appalachian Power Company v. EPA, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974). If the basis stated by the agency for its decision is insufficient, we may not supply another that the agency itself has not chosen to rely on. SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 494 (1943), 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947); FPC v. Texaco Inc., 417 U.S. 380, 395-396, 94 S.Ct. 2315, 41 L.Ed.2d 141 (1974). We must, however, “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transportation, Inc. v. Arkansas-Best Freight Systems, Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974). III. The 1977 BOD5 and TSS Limitations AMI’s first challenge is directed at the 1977 effluent limitations, which require application of “the best practicable control technology currently available.” For guidance in interpreting that term, EPA looks to Senator Muskie’s written explanation to the Senate, referred to at note 18, supra, in which he stated as follows: “In defining ‘best practicable’ for any given industrial category, the Committee expects the Administrator to take a number of factors into account. These factors should include the age of the plants, their size, the unit processes involved, and the cost of applying such controls. “The Administrator should establish the range of ‘best practicable’ levels based upon the average of the best existing performance by plants of various sizes, ages, and unit processes within each industrial category. In those industrial categories where present practices are uniformly inadequate, the Administrator should interpret ‘best practicable’ to require higher levels of control than any currently in place if he determines that the technology to achieve those higher levels can be practicably applied. “ ‘Best practicable’ can be interpreted as the equivalent of secondary treatment for industry, but this interpretation should not be construed to limit the authority of the Administrator.” Leg.Hist. 169-170. This, we think, is a reasonable view of the Administrator’s responsibility. The “best practicable technology” will normally be defined based on the average performance of the best existing plants. If, however, the Administrator concludes that present practices in an industrial category are uniformly inadequate, he may require levels of control based on technology not presently in use in the category (or, it would seem, technology in use only by a single plant), if he determines, by applying the criteria listed in § 304(b)(1)(B), that this technology can be practicably applied throughout the category. One of these criteria is the cost of applying the proposed technology in relation to the resulting effluent reduction. With these principles in mind, we turn to AMI’s challenges to the 1977 standards. A. Technology Relied on by EPA for Achievement of 1977 BOD5 and TSS Standards It appears from the EPA comments introducing the final regulation, 39 Fed. Reg. 7896 (February 28, 1974), that the 1977 effluent limitations are based primarily on the technology of biological treatment through a three-lagoon system. This is considered “secondary” treatment, that is, treatment which takes place after the waste water has passed through “primary,” in-plant treatment systems. In a three-lagoon system, waste water from the plant flows first into the anaerobic lagoon, where organic matter in the effluent is partially consumed by anaerobic bacteria (bacteria that do not require free oxygen). To increase oxygen levels in the waste water, it is then mechanically aerated in the aerated lagoon. The water then flows to the aerobic lagoon, where most of the remaining organic matter is consumed by aerobic bacteria (bacteria that do need oxygen). After being held there for a relatively long period, the waste water is discharged. EPA estimates, based on a sampling survey, that 63% of the slaughterhouses and packinghouses discharging into waterways already have lagoon systems. FDD 125. Apparently, many of these systems do not include mechanical aeration. The cost-benefit analysis made by EPA is based on the cost of adding mechanical aeration to those lagoon systems. 39 Fed.Reg. 7896. Other treatment systems mentioned in the comments were not subjected to the cost-benefit analysis required by § 304(b). Because only the three-lagoon system has been cost-justified, it is the only technology that can be considered “practicable” as that term is defined in § 304(b). B. The Effect of Climate and Temperature on the Efficiency of Aerobic and Anaerobic Lagoon Systems AMI’s first argument, aimed at the 1977 effluent limitations for all four subcategories of plants, is that, while the proposed lagoon system qualifies as practicable, it cannot achieve the limitations on a year-round basis because of seasonal and climatic effects. Winter conditions, according to AMI, impair the efficiency of both anaerobic and aerobic lagoons, while algae growth in the summer increases BOD5 and TSS. (1) The Effect of Winter Temperatures on the Anaerobic Lagoon The optimum temperature for an anaerobic lagoon is approximately 90 °F. Cold temperatures cause it to function less efficiently by slowing bacterial activity. The issue is the magnitude of this effect. AMI relies on an authority which says that removals are reduced to 70%. It conceded in its submittal to the agency, however, that the effect of winter temperatures on the anaerobic lagoon is small. EPA argues that winter temperatures are counteracted by the heat of incoming waste water (80-100 °F.) and by the insulating grease cover that forms over the pool. An article concerning the Wilson plant at Cherokee, Iowa, reports that the grease cover on the anaerobic pool, after taking some time to build up, insulated the effluent and maintained satisfactory temperatures. The anaerobic pond at that plant operated at a 92% level of efficiency in February 1970 EPA’s conclusion is also supported by data on other plants supplied by the State of Iowa, which show, for example, that at one plant the anaerobic temperature on two dates in January 1972 was 77-78°F. AMI has not satisfactorily refuted this evidence. Nor has it otherwise demonstrated that whatever decrease in anaerobic removals does take place in winter will affect the efficiency of the system as a whole sufficiently to prevent attainment of the standards. AMI’s own graph, submitted for the purpose of showing seasonal effects at American Beef’s plant at Oakland, Iowa, indicates that over a two-year period the plant met the BOD5 limitation in all but one of the coldest winter months (December through February). EPA also points to data from other plants which show that the 1977 limitations were met for extended periods that included winter months. These data are especially significant because they do not show the direct correlation AMI suggests between removal efficiency and cold weather. Finally, even assuming that cold weather reduces the efficiency of the anaerobic lagoon, overall system efficiency would be impaired only slightly, because a lagoon system as a whole responds much less to changed conditions than any of its parts. We conclude that there is firm record support for EPA’s conclusion on the effect of cold weather on the efficiency of the anaerobic lagoon. (2) The Effect of Winter Temperatures on the Aerobic Lagoon Like anaerobic lagoons, aerobic lagoons operate less efficiently in winter. Cold temperatures inhibit aerobic microorganisms, and ice and snow covers reduce the oxygen content of water. EPA argues that these difficulties can be ameliorated by increasing detention time, thereby giving the microorganisms more time to work, by using additional aerobic ponds, or by using submerged aerators. We agree with AMI that EPA’s argument as to these countermeasures is inadequately supported by the record. The record does suggest, however, that winter conditions do not make compliance with the 1977 standards impossible, since some plants have succeeded in complying with the BOD5 standards in winter. One such plant was the Wilson plant at Cherokee, Iowa, which maintained a 45% level of aerobic removal of BOD5 in February. The American Beef plant at Oakland, Iowa, also met the BOD5 limitations during the winter months, as did several other plants. AMI’s argument that some of these plants should be disregarded because they did not discharge in some winter months is unsound. As counsel for EPA pointed out during oral argument, a plant which does not discharge during a given period may be continuing its operations while storing its effluent. Our examination of the record confirms that the plants in question continued operations during periods when they did not discharge. The time of release is unimportant, so long as the effluent is successfully treated before release. Neither party has submitted information on TSS removal in winter. The data on BOD5 removal indicates, however, the incorrectness of AMI’s basic postulate that aerobic activity is sharply reduced during cold weather. Moreover, AMI’s own submittal indicates that TSS concentrations in winter are comparable to those in summer, and we conclude below that the TSS limitations are attainable in summer. Thus, although the record support for EPA’s position with respect to the effect of cold weather on aerobic ponds is less conclusive than the evidence concerning anaerobic ponds, we think it is still sufficient, bearing in mind the restricted scope of review under the “arbitrary and capricious” standard. (3) The Effect of Summer Weather on Aerobic Lagoons Warm weather promotes the growth of algae. On the basis of comments in the record by industry representatives, state pollution authorities, and others about the effect of algae on aerobic lagoons, AMI argues that algae growth increases TSS and BOD5 counts. Two of these comments refer in general terms to problems at individual plants without giving detailed supporting data; another comment is heavily qualified and inconclusive; and the others are purely conclusory. EPA states that the Illini Beef plant at Genesco, Illinois, and the Swift plant at Glenwood, Iowa, were able to meet the standards during summer months, as was the Routh plant at Sandusky, Ohio. AMI does not respond directly to these assertions, and, from our examination of the record we conclude that data from these plants fail to show the correlation between summer weather and TSS predicted by AMI. With respect to BOD5, EPA cites data from five plants that complied with the 1977 effluent limitations during the summer. AMI does not contest the figures regarding summer performance for two of these plants (Wilson, Cherokee, and Swift, Glenwood) but argues that Illini Beef and another plant should be disregarded because EPA itself, as shown in the Final Development Document, excluded them from consideration. The fifth plant was not mentioned or relied on by EPA in the Final Development Document. AMI also points out that a sixth plant, American Beef, failed to meet the standards during the summer. Nevertheless, the ability of even two plants using the proposed technology to meet the BOD5 and TSS standards in summer demonstrates that the standards are attainable in warm weather and is sufficient to overcome AMI’s weakly supported position. In summary, we find sufficient basis in the record for the Administrator’s conclusion that temperature changes do not render the 1977 effluent limitations unattainable by the 1977 technology he designated. C. Record Support for 1977 BOD5 and TSS Limitations We next consider AMI’s argument that the 1977 effluent limitations are arbitrary and capricious because they are not supported by the record. Limitations for three of the four subcategories were based on the performance of exemplary plants in each subcategory. AMI accepts this method but contests the reliability and significance of the figures used. Limitations for the fourth subcategory, high-processing packinghouses, were based on statistical techniques. AMI concedes that this approach is “not necessarily wrong,” but urges that EPA erred in implementing it. (1) Simple Slaughterhouses BOD5. EPA set B0D5 limitations for simple slaughterhouses as the average of the performance of four plants. Data for one of these, Cornwell at Pureellville, Virginia, must be disregarded because the plant did not use the 1977 technology- Data for the second plant, Collins Packing at Greenfield, Ohio, was derived from questionnaire responses. While the questionnaire responses for most other plants contain data collected at regular intervals over long periods, those submitted by Collins consisted of the results of only two tests. AMI argues that the results of one of these tests were so low as to raise a question about its reliability, and that the other test showed the plant’s effluent level to be over the standard. EPA’s figures show that if the second test alone were used, the plant would be only .0034 lb. BOD5/1000 lbs. LWK over the limitation, and AMI does not dispute this figure in its reply brief. The determination of whether the first test should be rejected because the result is unexpectedly low is peculiarly within EPA’s expertise, and we shall not substitute our judgment for that of the agency. Hence, we accept Collins as support for the standard. The third plant was Iowa Beef at La-Mars, Iowa. AMI argues that data from this plant should have been disregarded because “[t]he [aerobic] lagoon was only treating the portion of the waste that did not leak out and could accordingly provide the remaining waste a better degree of treatment. This plant cannot be considered representative of plants that must treat full strength full volume wastes.” This argument rests on two unarticulated assumptions: first, that wastes leak out faster than water, so that the concentration of waste is decreased by leakage; and second, that aerobic lagoons treat large volumes of waste water less effectively than small volumes. We find no support for these assumptions in the record, and conclude that EPA was justified in utilizing the data from LaMars. This data showed that the plant was .01 lb. BOD5/1000 lbs. LWK over the standard, but since EPA used an averaging process to set the standard for this subcategory, at least one of the numbers averaged must be greater than the average. Data for the fourth plant, Swift & Company at Glenwood, Iowa, came both from the North Star tests and the State of Iowa. Although AMI originally argued that the North Star tests did not show compliance with the 1977 limitation, it did not refute in its reply brief EPA’s showing to the contrary. The parties also disagree about whether the state data show the plant to be in compliance during some of the months it discharged. Neither side reveals its calculations, but our own show that the plant was in compliance for 20 consecutive months, as EPA contends. AMI also argues that Swift’s performance should be discounted because the lagoon system was “relatively new,” but the record contains no basis for the implication that efficiency decreases with age. We conclude that the 1977 BOD5 limitation for simple slaughterhouses, even considering the performance of only the three plants which qualify is adequately supported by the record. TSS. The TSS limitations for simple slaughterhouses are based in part on treatment systems at three of the four plants on which the BOD5 limitations for this subcategory were based. The Final Development Document states that the three plants operated at 97% efficiency and that assuming an average raw waste load, this would be sufficient to meet the TSS limitations. FDD 142 — 143. We agree with AMI that the record does not support the 97% figure for these three plants. EPA does not, however, rely solely on this figure. The Final Development Document places primary emphasis on the actual discharge levels at the three plants. While Swift, Glenwood violated the 1977 limitations during the North Star tests, Iowa State data show that plant to be in compliance for four of the five months in 1972 for which complete data are available. EPA says that Collins was' also well below the 1977 limitations, but the supporting data for this statement is not in the record. (Two other plants were able to attain the 1977 limitations, but EPA did not' rely on these plants as support for the standards because their operations are “very unusual.”) Meager as the foregoing evidence may seem, AMI itself, in its final submission during the rule-making process, recommended the TSS limitation EPA ultimately adopted. It did so “[o]n the basis of results obtained from several exemplary well operated lagoon systems in various parts of the United States.” We think EPA could reasonably conclude that this limitation was attainable. (2) Complex Slaughterhouses BOD5. EPA based its effluent limitations for complex slaughterhouses on five plants. We are unable to determine from the record whether one of these, Tama Beef at Tama, Iowa, complied with the limitations. The record shows that none of the remaining plants used full 1977 technology. Assuming, as appears to be correct, that mechanical aeration will produce the 40% efficiency claimed by EPA, two of the plants, Missouri Beef at Rockport, Missouri, and Iowa Beef at West Point, Iowa, could apparently meet the standards easily by adding the aeration step called for by the 1977 technology. The other two plants also support the attainability of the limitation. AMI admits that one of these, American Beef, met the standards for 15 months out of a two-year period, and that the other, Armour at Sterling, Illinois, did so for over three-quarters of a two-year period. We conclude that there was sufficient basis for the B0D5 standard for complex slaughterhouses. TSS. EPA contends that one complex slaughterhouse studied, American Beef, achieved the 1977 TSS limitation of .25 kg/1000 kg LWK. See FDD 143. According to AMI, however, North Star tests showed violations at this plant on two of the three test days. One violation was admittedly slight (.01 lb./1000 lbs. LWK over the limit). As to the second alleged violation, AMI points to a test result of .86, greatly in excess of the limit. EPA counters that the latter test result was actually .086, and attributes AMI’s figure to a misreading of the record due to illegibility. EPA maintains that this figure is consistent with other data in the record and results in an average discharge for the three test days of .19, well under the .25 limit. In its reply, AMI shifted its attack, arguing that EPA improperly relied on the North Star data rather than data obtained from the questionnaires. EPA responded at oral argument that the questionnaire data was “suspect” because “concentrations of suspended solids were in the range of a 100 milligrams per liter.” This explanation was unsupported by reference to the record or expert authority, and we have found no support for it in the record. EPA’s rejection of questionnaire data on this occasion is inconsistent with its preference for data of that kind in other instances in which that data and test data were at odds. In these other instances EPA chose to rely on data from questionnaires and state tests rather than on conflicting North Star tests, on the theory that data collected frequently over extended periods were more reliable than the isolated tests conducted by North Star. We find this approach reasonable and within EPA’s discretion to adopt, but once adopted it should have been applied consistently, unless EPA could provide a reasoned and record-supported explanation for not doing so. EPA has failed to explain satisfactorily why it took a contrary approach on this single occasion. EPA also attempts to support the TSS limitation with data from five simple slaughterhouses, which it contends met the complex slaughterhouse limitations and had comparable raw waste loads (i. e., volumes of effluent after in-plant treatment). Of these five plants, Corn-well must be disregarded because it did not use the 1977 technology. The raw waste load for two other plants, Collins and Iowa Beef, was less than half the average waste load for complex slaughterhouses, and that for both Illini Beef and Swift, Glenwood was 19% below the average. We thus have trouble finding that any of these four plants furnishes a basis for comparison. In sum, when we read EPA’s asserted rationale for the 1977 TSS limitation for complex slaughterhouses against the record, we must conclude that EPA has not supplied a reasoned basis for that limitation. We therefore remand the limitation to EPA for further consideration. (3) Low-Processing Packinghouses BOD5. EPA refers to five plants in support of the BOD5 standard for low-processing packinghouses. Two of the plants do not use lagoon systems. One of these must be disregarded completely, and the other is relevant only to demonstrate best practicable technology for plants currently using anaerobic contact. On the other hand, the Wilson, Cherokee plant fully complies with the 1977 limitations, as does the Routh Packing plant at San-dusky, Ohio, though its operations are in some respects atypical. The Iowa Beef plant could also be brought within the standards by the addition of mechanical aeration, in view of the fact that the plant qualifies for an adjusted limitation because it uses imported hides. We conclude that EPA’s effluent limitation is sufficiently supported. We are unpersuaded by AMI’s argument that in setting the standards for low-processing packinghouses below those for complex slaughterhouses, EPA contravened “the definitions and the inherent nature of these categories.” Because packinghouses perform the functions of slaughterhouses, together with additional processes that add to the raw waste load, AMI says the limitation for packinghouses should be higher rather than lower. Since meat packing operations in low-processing packinghouses contribute relatively little to the waste load, they may be ignored for present purposes. The dispute therefore focuses on the amount and nature of by-product processing done by plants in the two subcategories. EPA contends that the by-product processing done by low-processing packinghouses is “less extensive” than that done by complex slaughterhouses. AMI argues that the contrary is true, and we find the record to be inconclusive. Nor does the record contain information on whether plants in one subcategory tend to use processes that produce a higher waste load than those used by plants in the other subcategory. What does appear clearly from the questionnaire data in the record is that, whatever the reason, the average raw waste load is much lower for low-processing packinghouses than for complex slaughterhouses. AMI attacks this data as inaccurate, in part because it conflicts with North Star test data (which was available for only two plants in these subcategories). As we said earlier, EPA could properly rely on the questionnaire data even when North Star samplings were inconsistent with that data. We see no reason to believe that industry members would submit inaccurate data, especially when doing so might cause stricter limitations. TSS. Because treatment systems for other plants in this subcategory performed “rather poorly,” EPA relies solely on the Routh plant as support for its TSS limitation for low-processing packinghouses. We interpret this as a finding that, with the exception of this plant, technology in this subcategory was uniformly inadequate — a finding which EPA was entitled to make. See p. 453, supra. EPA maintains that its “determination to establish the effluent limitation at a level that is double the level being achieved by a major plant is reasonable.” Relying on questionnaire data, EPA says the Routh plant’s TSS emissions were less than half the 1977 limitation. AMI makes two arguments concerning Routh: first, that Routh did not use the 1977 technology; and second, that it was an atypical plant. The first argument was not raised by AMI until its reply brief, where it stated in a footnote that Routh “does not actually employ ‘best practicable control technology’ since it has a series of dissolved air floatation units rather than an anaerobic lagoon.” We would not find this persuasive, even if the argument were timely. (See note 44, infra.) The record demonstrates that Routh’s dissolved air floatation units, combined with other primary treatment, reduced TSS levels from 2.87 to .79, a reduction of 72%. This is a lesser reduction than is ordinarily achieved by an anaerobic lagoon, which, according to the Final Development Document, can remove up to 95% of TSS. Our own inspection of the record confirms that anaerobic lagoons are able to achieve removal rates well over 75%. For instance, North Star tests at Ulini Beef showed a 96.4% removal rate for TSS. Even the American Beef plant, one of the poorer performers with regard to TSS removal, obtained 78% anaerobic removal. Thus, Routh replaced the anaerobic component of the 1977 technology with an apparently less efficient component, but was still able to meet the standards. AMI also attacks the Routh plant as atypical. The Final Development Document states that “[t]he degree of secondary processing conducted at any packinghouse is somewhat variable, although a large number of by-product recovery operations are typically practiced.” FDD at 26. Most low-processing packinghouses apparently do blood or hide processing and inedible rendering, but Routh does none of these. Also, Routh’s raw waste load was below average for a low-processing packinghouse, though waste load varied greatly among such plants. See FDD 43. Despite these atypical features, EPA could reasonably find that a limitation twice that attained by Routh could be attained by other low-processing packinghouses, especially since Routh used a technology less efficient than that recommended for 1977. (4) High-Processing Packinghouses BOD5. High-processing packinghouses vary greatly in the quantity of off-site kill processed. For this reason, the method used by the Administrator to set effluent limitations for this subcategory was different from that used for other subeategories. He applied “the exemplary treatment technology proven in use by plants in the other three subcategories to the average raw waste values” for high-processing packinghouses. FDD 144. Using a statistical equation relating raw waste BOD5 to LWK and processed product production, he determined the raw waste BOD5 for plants having a .55 ratio of processed products to on-site kill. He then assumed a removal efficiency of 98.5% based on the performance of various secondary treatment systems, and calculated BOD5 limits for these plants based on the 98.5% figure. Other high-processing packinghouses were given an additional allowance over this base figure. AMI contends that the 98.5% figure is incorrect because the standards for the other categories require only 98.0% removal. EPA answers that “98.5 percent was found to be a reasonable intermediate point between average and exemplary performance of several biological systems, including anaerobic-aerated-aerobic lagoons . . . .” While this statement is vague, there is support for the 98.5% figure in the record. A' table in the Final Development Document of removal values for various biological systems shows average values of 95.4% for two-lagoon systems and 98.3% for three-lagoon systems, with the best plants reaching 98.9% and 99.5% respectively. FDD 94A. EPA was entitled to base its effluent limitations on the average of the best plants, rather than on the average of all plants, in the subcategories from which the exemplary technology was borrowed. Accordingly, selecting the 98.5% figure, which is lower than the average of the best plants, was not arbitrary or capricious. TSS. AMI made no complaint of the 1977 TSS limitation for high-processing packinghouses in its opening brief, aside from of its general attack concerning the effect of temperatures on lagoon systems, which we disposed of above. EPA’s answering brief noted this omission and made no argument with reference to the TSS limitation. In its reply brief, however, AMI challenged the TSS limitation as “purportedly based on suspended solids removals achieved in the three other categories,” and stated that “if those limitations must be reconsidered, as we contend, the high-processing packinghouse limitations should be reconsidered also.” The challenge not only comes too late, but is also too general to permit serious evaluation. Accordingly, we sustain the 1977 TSS limitation for high-processing packinghouses. IV. The 1983 Standards The distinction between the “best practicable” standard governing the 1977 technology and the “best available . . . economically achievable” standard governing the 1983 technology, according to Senator Muskie, “is intended to reflect the need to press toward increasingly higher levels of control in six-year stages.” Leg.Hist. 170. While some factors, are relevant to setting both standards (see § 304(b)(1)(B), (2)(B)), the 1983 effluent limitations are to be based on “a broader range of technological alternatives,” including techniques “which exist in operation or which can be applied as a result of public and private research efforts.” Leg.Hist. 170. No formal cost-benefit analysis is required in determining the “best available” technology, though the Administrator is to take cost into consideration. In addition, “rather than establishing the range of levels in reference to the average of the best performers in an industrial category [which is the norm for the 1977 technology, see p. 453, supra], the range should, at a minimum, . be established with reference to the best performer in any industrial category.” Id. In light of the stringent effluent limitations contemplated by the Act for 1983 and the declared national policy of eliminating the discharge of all pollutants by 1985 (§ 101(a)), we believe that the EPA must be upheld if it can show the existence of some technology which, if implemented, may reasonably be expected to achieve the 1983 standards. AMI’s position is that EPA’s standards for BOD5, TSS, and ammonia concentration are unattainable by the 1983 technology designated by EPA, and therefore cannot stand. We turn now to these arguments. A. Technology Relied Upon by EPA for Achievement of the 1983 BOD5 and TSS Standards The 1983 standards contemplate the implementation of a number of additions and improvements to “secondary” systems, which typically will be the three-lagoon systems on which the 1977 standards are based. Three of these “tertiary” or advanced treatment techniques are the subject of AMI’s criticism: land disposal, sand filtering, and microstraining. Land disposal is an alternative to discharge into waterways or public treatment systems. It involves disposing of waste water by distributing it through irrigation systems over relatively flat land, surrounded by dikes, upon which a cover crop of grass or hay may be grown. Barring underground seepage, land disposal totally eliminates the discharge of pollutants into public waters and is therefore highly preferable to other treatment systems. As AMI points out, however, in some locales land shortages or soil conditions may prevent use of land disposal, and in others freezing and lack of ground cover may prevent use of that technique in winter. AMI also contends that the EPA underestimated the amount of land necessary for effective disposal. A sand filter is a specially-prepared bed of sand or similar filter medium through which waste water passes and from which BOD5 and TSS are removed, either by raking the upper layers, through an under-drainage system, or by backwashing. AMI maintains that this technique is ineffective in removing algae, and that, aside from this problem, it is incapable of removing a sufficient proportion of the BOD5 and TSS allowed by the 1977 standards to meet the 1983 standards. Microstrainers are partially submerged rotating drums which remove BOD5 and TSS through use of a fine mesh fabric. AMI contends that they too are incapable of extracting algae, that they are a recent innovation on which performance data is sparse, and that no record estimate of their efficiency is based on a reliable source. The points raised by AMI are not without substance. EPA, in fact, has recognized that land disposal will not be universally available and has suggested its use only as a practical and efficient alternative. Also, while the EPA now appears ready to defend the efficiency of microstrainers, the Final Development Document notes the paucity of information on their reliability in full-scale operation. FDD 100. The defect in AMI’s argument, however, is that it fails to consider additions to the 1977 technology other than the three just examined. In particular, in-plant or “primary” techniques may be used to reduce the level of effluent in the water stream at an early stage, thereby reducing the efficiency at which tertiary systems such as sand filters must operate in order to attain the standards. One of these primary techniques is dissolved air floatation, which involves releasing a mixture of compressed air and liquid into the waste water stream to force small particles to the surface. When used with an alkalinity control and chemical flocculation, which causes the particles to aggregate, dissolved air floatation is capable of removing 90% of BOD5 and 98% of TSS, according to unconverted EPA statistics. Various other in-plant controls and modifications, such as improved handling of viscera, paunch, and blood wastes, all demonstrated as technically feasible, are also described in the Final Development Document. As to the problem of algae, AMI has submitted no data to show that algae growth in aerobic lagoons will result in excessive TSS in plants utilizing the in-plant controls and modifications and the extensive primary treatment EPA requires. On the other hand, EPA has suggested one method of reducing the algae content of the effluent discharged from the lagoons, namely, by locating the intakes for discharge pipes about a foot below the lagoon’s surface, since algae tend to float on the surface. Also, it-notes that the authority relied upon by AMI in its analysis of the effectiveness of sand filters actually indicates that they are capable of removing 33 to 45% of algae content. We conclude that EPA’s conclusions and the resulting 1983 limitations are based on a reasoned analysis of the record, with one exception. Since the 1983 TSS limitations are based in part on the 1977 limitation, the 1983 limitation for complex slaughterhouses should be reconsidered in light of our holding with respect to the 1977 TSS limitation for this subcategory. B. 1983 Ammonia Standards A final pollutant which EPA seeks to control by 1983 is ammonia. According to the Final Development Document, the concentration of ammonia in plant waste water ranges from 7 to 50 mg/1 before treatment, rising to a level of 100 mg/1 or more after treatment in an anaerobic lagoon. In the preamble to the effluent limitations, EPA states as follows: “The ammonia limitation was derived from engineering judgment as to the reliable capability of the air stripping method of ammonia control. It would appear that the limitation is a reasonable current estimate of the capability of ammonia stripping techniques for controlling this parameter.” In its brief in this court, however, EPA abandons sub silentio its reliance upon ammonia stripping and relies upon nitrification as the technology by which the effluent limitations can be met, adding that “use of ammonia towers [stripping] is not necessary to meet the standard. Nevertheless, ammonia towers are effective under proper conditions and may be utilized by the industry to meet the standard.” We first examine ammonia stripping, the technology on which EPA originally said it based the limitations. Ammonia stripping removes ammonia from liquid waste by exposing it to an ammonia-free gas such as air. After adjusting the alkalinity of the waste water, it is pumped to the top of a stripping tower and allowed to flow downward, while a counter-current of air introduced at the bottom of the tower flows upward. The method is capable of removing up to 98% of ammonia content. Reaching this efficiency, however, requires a level of air flow that is extremely costly to maintain. Moreover, removal efficiencies begin to drop once the temperature falls below 68° F., according to at least one record reference. Housing the tower and heating the air prior to introducing it into the tower are mentioned in the Final Development Document as means of dealing with the temperature problem but are characterized elsewhere in the record as impractical and extremely expensive. AMI notes finally that stripping towers are subject to scaling — the buildup of a calcium carbonate scale on the tower baffles, eventually reducing the tower’s efficiency— which is very difficult or impossible to remove in hard water areas. Thus, while some of the problems connected with ammonia stripping were recognized in the Final Development Document, neither it nor EPA’s brief suggests techniques which are likely to solve those problems. And, though counsel for EPA stated at oral argument that the agency has not abandoned this technique, we think that the difficulties are of a sufficient magnitude to preclude EPA from relying on this technique alone to meet the standards, at least on this record. Since EPA based the ammonia limitations on technology not shown to be feasible, remand is necessary. We cannot sustain the regulation on a basis which counsel now asserts but which the agency did not rely upon in formulating the regulation. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962). It is nevertheless appropriate to go on to express, for EPA’s consideration on remand, our views on the shortcomings of the present record with respect to nitrification, the method EPA relied upon in its brief before this court. Nitrification is the process of decomposing ammonia molecules by oxidizing their nitrogen into nitrites and nitrates, which are then usually converted to nitrogen and nitrogen oxide by a denitrification process. As noted above, the concentration of ammonia in waste water after it passes the anaerobic lagoon stage is 100 mg/1 or more. Hence, in order for nitrification to meet the 1983 limitation of 4.0 mg/1, the process must be capable of reducing the amount of ammonia content by at least 96%. The three studies in the record on which EPA relies to support the capability of the nitrification technique to reach 1983 standards show reduction of final ammonia concentrations below 4.0 mg/1, but the ammonia level of the influent (or liquid flowing into the processing unit) in each case was significantly less than 100 mg/1, yielding removal efficiencies of 10 to 90%. Counsel for EPA stated at oral argument that the problem with ammonia removal was not in percentage reduction but rather in achieving the base level, implying that a treatment process capable of achieving, for example, a 2 mg/1 effluent could do so regardless of the ammonia concentration of the influent. Perhaps this is so, and if it is, perhaps the point would be obvious to an expert. Since we, however, lack the expertise necessary to make such a judgment and the record is barren on the point, we are unable to uphold EPA, particularly in light of record evidence that the best available ammonia-removing technology applied to influents with 100 to 150 mg/1 ammonia yields a final effluent of 10 to 15 mg/1, substantially in excess of the 1983 standards. We therefore remand the 1983 ammonia standards for reconsideration and development of data adequately supporting whatever standards are ultimately adopted. V. Effluent Limitations in Issue Compared With Subsequently Issued Meat Processing Standards Approximately six months after promulgating the regulations under review here for slaughterhouses and packinghouses, EPA issued proposed standards for meat-packing plants, i. e., plants that process meat but do not do their own slaughtering. 39 Fed.Reg. 31486 (August 28, 1974). Because few meat processors have their own waste treatment systems, EPA- used data from its study of slaughterhouses and packinghouses in establishing the meat processing standards. AMI complains that “EPA set meat processing standards, especially 1983 meat processing standards, at levels which are significantly more lenient than those appealed by AMI in this proceeding,” and that “it is arbitrary and capricious for EPA to reach two different conclusions as to achievable limitations based upon the same data.” We do not have before us the record on which the regulations for the meat processing industry were based, and an intelligent comparison of the two industries and the regulations for each is impossible in the absence of full records for both industries. Moreover, as the court said in Portland Cement Association v. Ruckelshaus, supra, 486 F.2d at 389, “Inter-industry comparisons of this kind are not generally required, or even productive; and they were not contemplated by Congress in this Act [the Clean Air Act], ... It would be unmanageable if, in reviewing the cement standards, the court should have to consider whether or not there was a mistake in the incinerator standard, with all the differences in parties, practice, industry procedures, and record for decision.” We have decided in parts III and IV of this opinion that the challenged 1977 and 1983 standards for BOD5 and TSS for the Meat Products Point Source Category (with the exception of TSS for complex slaughterhouses) have adequate record support. The fact that less stringent limitations have been set for another category does not require further justification for the present ones. VI. Conclusion To summarize, we have decided that we have jurisdiction to review directly the existing source regulations challenged here. We have also found that temperature and climatic effects do not render the 1977 limitations unattainable, and that, with the exception of the TSS limitation for complex slaughterhouses, the 1977 limitations are based on a reasoned analysis supported by the record. Finally, we have found that the 1983 limitations for BOD5 and TSS are adequately supported (with the same exception), but that the limitation for ammonia is not. The only remaining problem is that of fashioning a remedy. The statutory deadline for promulgating existing source standards has passed, and the deadline for compliance with the 1977 standards is fast approaching. In order to expedite the case, we remand it to the EPA with the instructions set forth below, and retain jurisdiction pending the remand. CPC International Inc., supra, 515 F.2d at 1050 (citing cases). EPA may conclude, on reconsideration, that evidence in the existing record on which it did not previously rely is adequate to support the limitations. If so, it may issue a clarifying explanation and reissue the limitations without further hearings, notice, or opportunity for comment. See South Terminal Corp. v. EPA, 504 F.2d 646, 665 (1st Cir. 1974), and cases cited therein. On the other hand, it may decide to seek new data or to reconsider the limitations themselves. If so, it must follow the procedural requirements of the Act. In either event, if the petitioner is dissatisfied with the agency’s final action with respect to any effluent limitation, it shall have 21 days to file any objection to the effluent limitation in this court. The objection will then be heard by this panel of the court on an accelerated briefing schedule. We remand for expeditious consideration by the EPA, pursuant to these instructions, of the 1983 ammonia limitations and the 1977 and 1983 TSS limitations for complex slaughterhouses. With these exceptions, we uphold the challenged effluent limitations. Affirmed in part, remanded in part. . Sections of the Act are referred to in this opinion by their designations in the Statutes at Large. The parallel United States Code citations for the sections to which most frequent reference is made are as follows: Section 301 — 33 U.S.C. § 1311, Section 304 — 33 U.S.C. § 1314, Section 306 — 33 U.S.C. § 1316, Section 402 — 33 U.S.C. § 1342, Section 509 — 33 U.S.C. § 1369. . The requirements of subsection (b) take the form of exceptions to § 301(a), which forbids the discharge of pollutants except in compliance with specified provisions of the Act. The provisions specified are § 301 itself (Effluent Limitations), § 306 (National Standards of Performance), § 307 (Toxic and Pretreatment Effluent Standards), § 318 (Aquaculture Projects), § 402 (National Pollutant Discharge Elimination System), and § 404 (Permits for Dredged and Fill Material). For another description of the provisions of the Act relating to the adoption of effluent regulations, see National Resources Defense Council, Inc. v. Train, 510 F.2d 692, 695-697 (D.C.Cir. 1975); see also Stream Pollution Control Board v. United States Steel Corp., 512 F.2d 1036, 1041-1042 (7th Cir. 1975). . A “point source” is “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, [etc.], from which pollutants are or may be discharged.” § 502(14). . Publicly-owned treatment works are regulated differently under § 301. Existing plants must adopt “secondary treatment” as defined by the Administrator under § 304(d)(1). By 1983, public treatment works must comply with § 201(g)(2)(A), which calls for use of the “best practicable waste treatment technique.” Special provisions govern industrial dischargers that use public treatment systems rather than discharging directly into waterways. If the public treatment system has adopted secondary treatment, the industrial discharger need only meet the pretreatment requirements of § 307. Some 55% of the packinghouses and slaughterhouses discharge into public treatment systems; the regulations under review here apply primarily to the remaining 45% but potentially could apply to plants discharging into municipal systems that do not utilize secondary treatment. . Although § 304(b) called for publication of final guideline regulations within one year after the effective date of the Act, which would have been October 18, 1973, EPA failed to do so, presumably because of the staggering proportions of its task. In an action to require EPA to comply with the statutory deadline, the United States District Court for the District of Columbia ordered the agency to issue regulations for the Meat Products Point Source Category by February 16, 1974. National Resources Defense Council, Inc. v. Train, 6 ERC 1033 (D.D.C.1973). The court of appeals reversed the district court’s holding that the October 18 deadline applied to categories of point sources, which unlike the meat product category, were not listed in § 306(b)(1)(A), 510 F.2d 692, 704 et seq. (D.C.Cir. 1975), but affirmed as to those categories that were so listed. . Public-owned treatment works are excepted from § 304(b). . The Administrator has additional duties that are not involved in this case. For example, § 307 requires him to adopt pretreatment standards for certain toxic substances. . While the Act refers to the Administrator as the official to whom responsibilities are delegated, he of course carries out his duties through the agency, which is the first named respondent here and on whose behalf the respondent’s brief has been filed. We will hereafter refer to EPA and the Administrator interchangeably. . According to the Final Development Document, “[t]he major criterion for the establishment of the categories” was the oxygen demand of the plant waste water; “[o]ther criteria were the primary products produced and the secondary (by-product) processes employed.” FDD 1. The sub-categories are-defined in the regulations, however, only in terms of function and extent of by-product processing. . The regulations also cover new sources. For each subcategory there is a section prescribing new source standards of performance pursuant to § 306, 40 C.F.R. §§ 432.15, 432.25, 432.35, 432.45, and a section prescribing pretreatment standards pursuant to § 307, 40 C.F.R. §§ 432.16, 432.26, 432.36, 432.46. Neither the new source nor the pretreatment regulations are challenged in this proceeding. . The application must be filed within 90 days. § 509(b)(1). Action which could be reviewed under this provision is not subject to judicial review in any later enforcement proceeding. § 509(b)(2). . CPC International Inc. and the American Petroleum Institute filed briefs attacking the Administrator’s authority; the National Resources Defense Council filed briefs in support of the Administrator. References in the text to “amici” refer only to CPC and American Petroleum Institute. . EPA argues that we would still have jurisdiction to review the regulations because of the close interrelationship between § 301 limitations and § 304(b) guidelines, and because bifurcated review of the limitations and guidelines would frustrate an important purpose behind the judicial review provisions of the Act — expeditious and consistent application of effluent limitations. See Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963); E. I. DuPont de Nemours v. Train, 383 F.Supp. 1244, 1253-1254 (W.D.Va.1975), appeal pending, No. 74-2237 (4th Cir.). Cf. National Resources Defense Council, Inc. v. Train, 519 F.2d 287, 290 (D.C.Cir. 1975). We need not reach this point in view of our conclusion as to § 301. In American Iron and Steel Institute v. EPA, 526 F.2d 1027, No. 74-1640 (Nov. 7, 1975), cited infra, p. 449, et seq., the court (p. 1045, et seq.) reviewed effluent regulations issued under both § 301(b) and § 304(b) and found that they did not meet the requirements of § 304(b). It is not contended in the case at bar that the requirements of § 304(b) were not complied with. . Both EPA and amici apparently assume that rejection of EPA’s interpretation of § 301 would require a radical change in the way the Act is now administered. This is far from clear. Admittedly, if amici’s view of § 301 were accepted, effluent limitations applicable to a particular source could not be set until the permit issuance proceeding, but it does not necessarily follow that, before issuing the permit, EPA would be forced to gather and analyze data on the individual characteristics of each plant. Instead, EPA could perhaps include minimum effluent limitations in the guidelines and place the burden on the applicant of justifying a higher effluent limitation. In effect, the applicant would be required to apply for a variance from the standard set by the guideline. A similar regulation could be established to govern EPA approval of state-issued permits. A strong argument, at least, could be made for the validity of this approach under § 501(a), 33 U.S.C. § 1361(a), which gives EPA the power to make “such regulations as are necessary to carry out” its functions. See United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081 (1956); National Petroleum Refiners Ass’n v. FTC, 157 U.S.App.D.C. 83, 482 F.2d 672, 692 (1973), cert. denied, 415 U.S. 951, 94 S.Ct. 1475, 39 L.Ed.2d 567 (1974). In short, the issue here is not whether EPA’s whole approach to administering the statute is wrong, but simply whether it has misinterpreted the particular method by which it was to carry out its functions. . Section 301(c) provides for variances from the 1983 standards for individual plants. The Act itself does not contain a comparable provision with respect to 1977 standards (perhaps because Congress contemplated they would be less rigorous) but the regulations do provide for variances from the 1977 standards. 42 C.F.R. §§ 432.12, 432.22, 432.32, 432.42. . Amici have urged us to distinguish Train on the ground that there the agency’s statutory interpretation was contemporaneous with Congress’ consideration of the legislation, whereas here EPA actually expressed a contrary view during hearings on the Act and now urges an interpretation it adopted only some time after the Act was passed. We think, however, that this distinction is not substantial enough to overcome the strong policy announced by the Supreme Court in Train in favor of according great deference to EPA’s interpretation of the statutes it administers, having in mind the complexity and technical nature of the statutes and the subjects they regulate, the obscurity of the statutory language, and EPA’s unique experience and expertise in dealing with the problems created by these conditions. . The Eight Circuit in CPC International Inc. v. Train, supra, 515 F.2d at 1038, also attempted to distinguish between “standards” and “limitations.” Section 316(b)’s reference to “[ajny standard established pursuant to section 301” tends to undermine that position. . Remarks by Senator Muskie, made in a similar context before passage of the Clean Air Act, have been held to be “entitled to significant weight.” Amoco Oil Co. v. EPA, 163 U.S.App.D.C. 162, 501 F.2d 722, 734 (1974). This opinion has been circulated among all judges of this court in regular active service, in view of the conflict between our holding in Part I and that of the Eighth Circuit in CPC International Inc. v. Train, supra, 515 F.2d 1032, and no judge has requested that the issue decided in Part I be reheard in banc. . This is a minority of all plants. See note 4, supra. . A. S. Johnson, “Meat,” in Industrial Waste-Water Control 49 (C. F. Gurnham ed. 1965). . AMI’s submittal states: “[I]n the winter months, the biological activity of the anaerobic lagoon is reduced slightly as the result of colder water temperatures.” . Hester & McClurg, “Operation of a Packing Plant Waste Treatment Plant” (1970) (paper presented at the 25th Purdue Industrial Waste Conference). This article was not listed in the initial certified list EPA filed in lieu of the record under Rule 17(b), Fed.R.App.P., but EPA has filed a motion to supplement that list. The affidavit supporting the motion states that the materials in question were actually before the agency but were accidentally deleted in compiling the list. Since AMI had an opportunity in its reply brief to respond to these materials, it has not been prejudiced by EPA’s delay in designating these materials. Accordingly, we grant EPA’s motion. . This means that at a typical low-processing packinghouse with a raw waste BOD of 8.1 kg/1000 kg LWK 7.45 kg/1000 kg LWK would be removed at the anaerobic lagoon, leaving only .65 kg/1000 kg LWK. To reach the 1977 limitation for low-processing packinghouses, the combined efficiency of the rest of the system would have to be only about 75%. . The plant’s performance was also very poor in October and November of one year, which EPA says was caused by a change in equipment combined with operation in excess of the design capacity of the plant. . If we assume for purposes of illustration that each component in a system is 100% efficient under optimum conditions, and that this efficiency is reduced to 50% in winter, then in winter the anaerobic pool would remove only 50% of the pollution, the aerated pool 50% of the remainder, leaving 25%, and the aerobic pool 50% of that, leaving 12'/2% of the initial effluent. The total removal efficiency would be 87!/2% even though each part of the system was working at only 50% efficiency. EPA’s brief contains a table which illustrates that a 10% decrease in anaerobic removal results in only a 1% decrease in total removals, assuming unimpaired functioning of the rest of the three-lagoon system. . Neither additional aerobic ponds nor submerged aerators were included in EPA’s cost evaluation, and we are not directed to any evidence in the record as to their effectiveness or feasibility. EPA cites an article not contained in the record to support the feasibility ■ of longer detention, but we note that the article concludes by saying that longer detention is not effective “in regions where long periods of ice prevail.” . According to the Florida Meat Packers’ Association, “In southern climates algae will grow in lagoons to the extent that T.S.S. will actually increase in some cases.” . The development documents do not identify the exemplary plants on which the effluent limitations for each subcategory are based. They were identified by EPA during the pend-ency of this review proceeding in response to an informal request by AMI’s engineering consultants. . The plant’s worst performances during the relevant period took place in September 1971 and April 1972. Raw waste in September contained 6877 lbs. BOD5, of which 99.7% was removed. This leaves 0.3% or 20.6 lbs. BOD5. Live weight killed was 660,000 lbs. The discharge in September was .03 lb. BOD5/1000 lbs. LWK, well under the .12 effluent limitation. A similar calculation for April 1972 gives a discharge of .11 lb. BOD5/1000 lbs. LWK, based on a removal rate of 98.9%, raw BOD5 of 6365 lbs., and LWK of 691,000 lbs. AMI also argued that months in which the plant did not discharge should be disregarded, an argument we rejected above (in the paragraph following note 26). . One of the three plants (Cornwell) must be discarded because the technology used there was not cost justified. EPA used figures of 96.2% and 95.3% for the other two plants. The average of these two figures is 95.7%. . Although the Final Development Document does not refer to AMI’s comment as a basis for the standard, it is clear from the comments ■ to the final regulation that EPA relied on industry comments in setting the final effluent limitations. 39 Fed.Reg. 7895, 7896. Cf. American Iron and Steel Institute v. EPA, supra, at 1050-1051. . The data from the Wilson plant at Cherokee, Iowa, for February shows a 45% efficiency for the aerated pond, even though efficiency decreases in winter. Moreover, aerated lagoons are “generally designed to achieve an average BOD5 reduction of 50 to 60%,” as reported at an EPA industrial seminar on waste treatment systems. On balance, EPA’s 40% figure seems to be supported by the record. . EPA argues that two months of violation were caused by equipment changes (see note 24, supra), that the pollution control system was overloaded, and that primary treatment was very poor. . While we do not ordinarily consider arguments raised for the first time in a reply brief (see note 44, infra), AMI did challenge the basis for the standard in its opening brief, and presumably it would have advanced this additional theory at that time had EPA’s figures been legible. Only for this reason do we now make an exception and reach the merits of this argument. As noted in the text, EPA had a chance to respond at oral argument. Any additional justification which EPA might have for this limitation should be fully delineated on remand. . In the Final Development Document (at 143), EPA states that two other plants were only 25-30% over the average. AMI contends that the figure should be higher, and EPA did not pursue the point. . We have some difficulty in following both AMI’s and EPA’s calculations for Illini Beef and Swift. AMI assumes that the average waste load for complex slaughterhouses is 10.5 lbs./1000 lbs. LWK, while EPA places the figure at 10.9 lbs. The source cited by both, FDD 39, gives a figure of 9.6. EPA says that Swift’s raw waste load was 9.6 lbs./1000 lbs. LWK, while the data base summary, using questionnaire responses, quotes a raw waste load of 7.8 for Swift and 7.78 for Illini Beef. The figure given in the data base for each plant is approximately 19% below the 9.6 average for complex slaughterhouses. . By adding mechanical aeration, the plant could achieve the 1977 limitation. EPA has cost-justified the incremental addition of mechanical aeration, as we observed earlier. . The Routh plant is discussed in more detail in connection with the TSS standasds. . The regulations provide for adjustments in the effluent limitations of plants that process hides or blood from, or perform rendering on, animals slaughtered elsewhere. See 40 C.F.R. § 432.12(b)-(e) (simple slaughterhouses); id. § 432.22(b)-(e) (complex slaughterhouses); id. § 432.32(b)-(e) (low-processing packinghouses); id. § 432.42(b)-(e) (high-processing packinghouses). . According to the Final Development Document, “Secondary processes used interrelate with both the final products and waste characteristics; however, the kind of manufacturing process is more relevant than the specific by-product. The process by which a byproduct is made determines the waste load. Thus, it is the nature of the secondary processes rather than by-products themselves which define the categories. Unfortunately, there are a number of secondary manufacturing processes that can be used within each by-product area. Furthermore, there is no typical or usual combination of secondary manufacturing processes in the industry. Therefore, some other means of grouping plants by secondary manufacturing processes is required.” FDD 30. . To accept AMI’s position, we would have to assume not only that industry members submitted inaccurate data, but also that for some unknown reason data for plants in one subcategory was less accurate than data from others. . AMI again argues that the questionnaire data is undermined by North Star’s verification testing, an argument we have previously rejected. . By combining Routh’s aerated and aerobic lagoons with an anaerobic lagoon, the typical low-processing packinghouse could easily meet the 1977 TSS standard. The average TSS level in raw waste from low-processing packinghouses is 5.9 kg/1000 kg LWK. The lagoon system at Routh has a removal efficiency of 94%. As shown in the text, a conservative figure for anaerobic removal is 70%. Thus, after anaerobic treatment only 1.77 kg TSS/1000 kg LWK would remain. Routh’s lagoon system would remove 94% of the remainder, leaving .106 kg/1000 kg LWK. The 1977 standard for low-processing packinghouses is .24 kg/1000 kg LWK. . Our Circuit Rule 10 (1973) provides that “[a] reply brief shall present only matter in reply to questions discussed in appellee’s brief.” . Since the 1983 BOD5 and TSS standards have been set at approximately 25% of the 1977 standards, AMI reasons correctly that whatever additional technology is utilized will have to maintain a removal efficiency of 75%. Estimates for sand-filter removal range between 40 to 90% for BOD5 and 60 to 75% for TSS. . AMI also criticizes the use of “slow” sand filters, as opposed to “rapid” sand filters which operate under pressure, because of the maintenance problems (mainly, hand raking) connected with them. The solution to this problem would appear to be the use of rapid sand filters where slow sand filters are not feasible. . EPA states in the Final Development Document (at 149) that it has given due consideration to the cost of the techniques to be utilized in achieving the 1983 limitations, as required by § 304(b)(2)(B). Since AMI does not here raise cost as an issue, there is no need for us to require further justification. . The Final Development Document states (at 150) that “[t]he Best Available Technology Economically Achievable [the 1983 technology] includes that listed under the Best Practicable Control Technology Currently Available [the 1977 technology].” See also note 45, supra. . The Final Development Document reports that ammonia stripping is “a well-established industrial practice in the petroleum refinery industry” and that the “only significant difference” in its application to meat-slaughtering plants would be the smaller size of stripping tower required. FDD 104. But other than these conclusory comparisons, the record is barren of information which would permit us to conclude that the technology employed in the petroleum industry might be capable of coping with meat-slaughtering-plant wastes or otherwise capable of meeting the limitations established for the meat product industry. . EPA in its brief also cites two other studies not a part of the record, which we could not consider even if the validity of the standard turned upon nitrification efficiency. Cf. Amoco Oil Co. v. Environmental Protection Agency, 501 F.2d 722, 729 n.10 (D.C.Cir. 1974). EPA will, of course, be free to rely upon these additional studies in its reconsideration of the standard upon remand. . Letter from T. Driscoll, OASES Wasterwater Treatment Systems, to D. Denker, Oscar Mayer & Co. (Jan. 18, 1974). . These regulations, in proposed form at the time this case was briefed, have since been adopted with some modifications in final form. 40 Fed.Reg. 902 (January 3, 1975).

Michigan Department of Environmental Quality v. United States Environmental Protection Agency

OPINION MERRITT, Circuit Judge. In this environmental case arising under section 402 of the Federal Water Pollution Control Act, 33 U.S.C. § 1342, the narrow question before us is one of procedural default. The Environmental Appeals Board held that the Michigan Department of Environmental Quality, a state agency, did not identify with sufficient clarity and specificity its objections to the actions of the Administrator of the Environmental Protection Agency in issuing, under section 402 of the Federal Water Pollution Control Act, 33 U.S.C. § 1342, a National Pollutant Discharge Elimination System permit to a wastewa-ter treatment facility located on the Saginaw Chippewa Isabella Reservation. The underlying question on the merits is whether the State of Michigan or the EPA is the appropriate authority to issue discharge permits on the Isabella Reservation. Apart from the question of procedural default, the petitioners assert that there exists an independent jurisdictional basis for this Court to reach the merits by reviewing the EPA’s interlocutory actions relating to Michigan’s proposed permit for the same facility. The Environmental Appeals Board has the authority to enforce rules of procedural regularity in cases before it. One such rule is found at 40 C.F.R. § 124.19 of the EPA’s regulations and governs the content of petitions to obtain Board review of decisions of the Administrator. That rule provides that the petition must “show” that the challenged actions of the Regional Director were based on a “finding of fact or conclusion of law which is clearly erroneous” or the “exercise of discretion or important policy consideration” that should, in the Board’s discretion, be reviewed. In the present case, the Board dismissed Michigan’s petition for failure to comply with this rule. We have jurisdiction to review the EPA’s final permitting decision under 33 U.S.C. § 1369(b)(1)(F), and will overturn the Board’s ruling only if it was “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law” under § 706(2)(A) of the APA. See Spitzer Great Lakes Ltd. v. EPA, 173 F.3d 412, 414 (6th Cir.1999). The Board has consistently held that a petitioner must satisfy the pleading requirements set out in the regulation in order to meet its burden of showing that review is warranted: The preamble to § 124.19 states that the Board’s power of review “should be only sparingly exercised,” and that “most permit conditions should be finally determined at the Regional level * * *.” 45 Fed.Reg. 33,412 (May 19, 1980). The burden of demonstrating that review is warranted rests with the petitioner who challenges the Region’s permit decision. Further, a petition for review must include “a statement of the reasons supporting that review, including a demonstration that any issues being raised were raised during the public comment period * * The Board has explained that in order to establish that review of a permit is warranted, § 124.19(a) requires a petitioner to both state the objections to the permit that are being raised for review, and to explain why the Region’s previous response to those objections (i.e., the Region’s basis for the decision) is clearly erroneous or otherwise warrants review. In re Puerto Rico Elec. Power Auth., 1995 WL 794466, 1995 EPA App. LEXIS 38, at *5-7, 6 E.A.D. 253, 255 (EAB 1995) (citations omitted). In Michigan’s four-and-a-half page petition before the Board, Michigan purported to satisfy its burden under § 124.19(a) by declaring that the agency’s actions were unauthorized and by referring the Board to two appendices. These contained the EPA’s final discharge permit for the wastewater treatment facility, Michigan’s comments objecting to the proposed EPA permit along with the original attachments to the comments, and the EPA’s detailed responses to comments. The Board denied the petition, citing several Board decisions for its specific rule that a petitioner may not simply restate or refer to -its original comments in order to be granted review. See, e.g., In re SEI Birchwood, Inc., 1994 WL 36876, 1994 EPA App. LEXIS 31, at *6, 5 E.A.D. 25(EAB) (petition denied when it simply restated comments without explaining why the EPA’s response was inadequate); In re Genesee Power Station, 1993 WL 484880, 1993 EPA App. LEXIS 23, at *79-80, 4 E.A.D. 832(EAB) (“[T]he inclusion of a copy of the Society’s public comments on the draft permit [do not] meet the requirements of Section 124.19(a).”). We hold that the Board’s interpretation and application of § 124.19(a) in this case was not an abuse of discretion. Instead of explaining to the Board why the Region’s detailed responses to its comments were clearly erroneous, Michigan simply repackaged its comments and the EPA’s response as unmediated appendices to its petition to the Board. This does not satisfy the burden of showing entitlement to review. Athough the EPA “has the discretion to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it,” Spitzer, 173 F.3d at 415 n. 3, its decision not to relax or modify its rule in this case was not an abuse of discretion. Nor can we agree with petitioners’ contention that the Board’s rule that the unmediated resubmission of comments and subsequent responses will not satisfy § 123.19(a) is “hidden.” The rule has been stated and restated throughout Board decisions. As a result, we will not review on the merits the petitioners’ challenge to the EPA’s authority to issue the permit, both as a matter of final permit action or as a matter of interlocutory procedural action reviewable only upon review of .the final agency action under § 1369(b)(1)(F). See 5 U.S.C. § 704 (“A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action.”). The petitioners contend that, quite apart from its exclusive jurisdiction to review the EPA’s final federal permit decision under § 1369(b)(1)(F), this Court has jurisdiction to review de novo the interlocutory procedures used by the EPA to halt the issuance of proposed state permits for two facilities on the Isabella Reservation. Acknowledging that the Board had no jurisdiction to review a challenge to the interlocutory action insofar as it was a part of state permit proceedings, the petitioners nevertheless contend that their challenge to the interlocutory state permit action is now “ripe” for this Court’s de novo review under §§ 701-706 of the APA. We reject this contention. Our jurisdiction over this appeal comes from the specifically enumerated grounds in § 1369(b)(1) and no other source. The APA does not provide a federal court with any independent basis for jurisdiction. See Califano v. Sanders, 430 U.S. 99, 106-07, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Rather, the APA prescribes standards for judicial review of an agency action, once jurisdiction is otherwise established. See Dixie Fuel Co. v. Commissioner of Soc. Sec., 171 F.3d 1052, 1057 (6th Cir.1999) (citing Califano, 430 U.S. at 107, 97 S.Ct. 980). As noted above, by virtue of our jurisdiction under § 1369(b), the petitioners had their chance for judicial review of these same interlocutory actions. See 5 U.S.C. § 704. That chance was procedurally defaulted at the administrative appeals level when Michigan failed to meet its burden under 40 C.F.R. § 124.19(a). The petition for review is DENIED. . See 40 C.F.R. § 123.1(h). That subsection provides: In many cases, States (other than Indian Tribes) will lack authority to regulate activities on Indian lands. This lack of authority does not impair that State's ability to obtain full program approval in accordance with this part, i.e., inability of a State to regulate activities on Indian lands does not constitute a partial program. EPA will administer the program on Indian lands if a State (or Indian Tribe) does not seek or have authority to regulate activities on Indian lands. . Section 124.19 provides, in relevant part: The petition shall include a statement of the reasons supporting that review, including a demonstration that any issues being raised were raised during the public comment period (including any public hearing) to the extent required and when appropriate, a showing that the condition in question is based on: (1) A finding of fact or conclusion of law which is clearly erroneous, or (2) An exercise of discretion or an important policy consideration which the Environmental Appeals Board should, in its discretion, review. 40 C.F.R. § 124.19(a)(1)-(2). . The Board has consistently applied this rule in denying petitions for review. See, e.g., In re LCP Chems.-New York, 1993 WL 208894, 1993 EPA App. LEXIS 15, at *8-9, 12 & n. 8, 4 E.A.D. 661 (EAB 1993) (review denied for failure to identify specific conditions of permit challenged on appeal); In re Adcom Wire, 1992 WL 232313, 1992 EPA App. 31, at *17-19, 4 E.A.D. 221, 228-29 (EAB 1992), remanded in part, 1994 WL 36740, 1994 EPA App. LEXIS 16, 5 E.A.D. 84(EAB), and clarified, 1994 WL 276872, 1994 EPA App. LEXIS 28(EAB) (review denied for failure to satisfy procedural requirements for appealing substantive conditions of permit). . The Board is authorized to review EPA action only with respect to the issuance or denial of federal permits. See 40 C.F.R. § 124.15.

Natural Resources Defense Council v. United States Environmental Protection Agency

THOMAS, Circuit Judge. Petitioners seek review of permits issued by the United States Environmental Protection Agency (“EPA”) authorizing the operators of log transfer facilities in Aaska to release bark and woody debris into marine waters. We conclude that the EPA faded to provide adequate notice and opportunity for comment prior to issuing the final general permits, and we grant the petition for review in part. I To achieve the goal of reducing and eventually eliminating pollution, Congress prohibited the “discharge of any pollutant” from a “point source” into the waters of the United States, unless that discharge complies with the Clean Water Act (“CWA”) of 1971, 33 U.S.C. §§ 1251-1387. 33 U.S.C. §§ 1311(a), 1342. The National Pollutant Discharge Elimination System (“NPDES”) is one of the primary means of controlling water pollution under the CWA. See CWA § 402, 33 U.S.C. § 1342. Under the NPDES, a pollutant cannot be discharged from a point source unless the discharge is authorized by an NPDES permit. See id.; see also CWA § 301, 33 U.S.C. § 1311. A state may create its own program for issuing NPDES permits. See CWA § 402(a)-(c), 33 U.S.C. § 1342(a)-(c). Alaska has not chosen to do so, and thus the EPA issues NPDES permits for discharges of pollutants within Alaska. NPDES permits come in two varieties: individual and general. An individual permit authorizes a specific entity to discharge a pollutant in a specific place and is issued after an informal agency adjudication process. See 40 C.F.R. §§ 122.21, 124.1-124.21, 124.51-124.66. General permits, on the other hand, are issued for an entire class of hypothetical dischargers in a given geographical region and are issued pursuant to administrative rulemaking procedures. See id. §§ 122.28, 124.19(a). General permits may appropriately be issued when the dischargers in the geographical area to be covered by the permit are relatively homogenous. See id. § 122.28(a)(2). After a general permit has been issued, an entity that believes it is covered by the general permit submits a “notice of intent” to discharge pursuant to the general permit. Id. § 122.28(b)(2). A general permit can allow discharging to commence upon receipt of the notice of intent, after a waiting period, or after the permit issuer sends out a response agreeing that the discharger is covered by the general permit. Id. § 122.28(b)(2)(iv). Whichever of these three authorization methods is used in the general permit, the permit issuer can require a particular dis-charger to undergo the individual permit application process. Id. § 122.28(b)(3). Under the CWA, each state sets its own water quality standards, subject to review and approval by the EPA. See CWA § 303, 33 U.S.C. § 1313; 40 C.F.R. §§ 131.4, 131.10-131.12. Before approving a state’s proposed standards, the EPA must be satisfied that the standards comply with the requirements of the CWA. CWA § 303(a), 33 U.S.C. § 1313(a). Alaska has enacted water quality standards that have been approved by the EPA. See Alaska Admin. Code tit. 18, ch. 70. Before the EPA can issue either an individual or a general NPDES permit, the state in which the discharge will occur must certify, or waive its right to certify, that the discharge authorized by the permit will comply with the state’s water quality standards. CWA § 401(a), 33 U.S.C. § 1341(a); 40 C.F.R. §§ 122.4(b), 124.53. II Because of Alaska’s unique and rugged terrain, most logs cut in Alaska are transported to market through marine waters. For transport, the logs are tied together into bundles that form log rafts. The bundles are placed into the water at log transfer facilities (“LTFs”). See 33 U.S.C. § 1342 note. From these points, the bundles are towed to destinations such as sawmills and shipping ports. During this process, particularly at the point where the logs are placed into the water, the logs rub against each other and sometimes against the bottom of the body of water. This friction, as well as the contact of the logs with the water itself, causes bark and woody debris to be rubbed or broken off and released into the water. Different methods of placing the logs into the water result in different amounts of bark and woody debris being released. Bark and woody debris remain in the water and do not decay for many years. In areas where the water lacks strong currents or where high amounts of bark and woody debris enter the water, the bark and woody debris can accumulate into significant concentrations. These accumulations of bark and woody debris create problems for marine life and worsen the quality of the water. The EPA identified bark and woody debris as a pollutant in the early 1980s. Consequently, the EPA required new LTFs to obtain individual permits before discharging bark and woody debris. See Water Quality Act of 1987, Pub.L. No. 100-4, § 407(a), 101 Stat. 7, 74 (1987); see also CWA § 402, 33 U.S.C. § 1342 & note. Most LTFs in existence before October 22, 1985, however, have not been required to obtain new permits. Congress enacted a special statutory provision allowing them to continue discharging under the authority of permits issued pursuant to prior statutory authority. See Water Quality Act § 407(b); see also 33 U.S.C. § 1342 note. However, if the EPA determines, after the opportunity for a hearing, that an LTF’s existing pre-1985 permit does not comply with current substantive standards, the EPA can modify the permit to incorporate additional requirements in order to ensure compliance with current substantive standards. See id. In the mid-1990s, the EPA came to the conclusion that the pre 1985 permits did not comply with the CWA. According to the EPA, the pre 1985 permits did not: (1) “include a zone of deposit for underwater accumulations of bark and woody debris at the LTF”; (2) “include uniform monitoring and reporting requirements”; or (3) “provide uniform application of best management practices and specific effluent limitations.” Accordingly, the EPA proposed to modify all pre-1985 permits for LTFs in Alaska. The EPA issued for comment a draft general permit that would apply to nearly all LTFs in Alaska, including new LTFs and existing LTFs functioning under individual, post 1985 NPDES permits as well as LTFs functioning under pre-1985 permits. The proposed permit included changes in monitoring and reporting requirements, management practices, and effluent limitations. It also noted that Alaska proposed to allow a one-acre zone of deposit for bark and woody debris, defined by accumulations of 100 percent cover that exceed four inches’ depth at any point, and to allow patchy distribution of bark beyond the one-acre zone of deposit. A “zone of deposit,” a creature of Alaska state law, is an area in which Alaska’s water quality standards can be violated. See Alaska Admin. Code tit. 18, § 70.210(a). Alaska’s water quality standards consist of maximum levels for the amount of pollutants that can be in waters of different classifications. See id. § 70.020(b). Bark and woody debris fall into the category “residues.” The maximum amount of residue that can be in the highest class of water is defined as the amount that does not “make the water unfit or unsafe for use, ... or cause a sludge, solid, or emulsion to be deposited beneath or upon the surface of the water, within the water column, on the bottom, or upon adjoining shorelines.” Id. § 70.020(b) at 634, 641. The parties interpret this provision as meaning that, in general, any bark or woody debris released into the water would violate this standard. Because a zone of deposit is an area in which the standards can be violated, however, bark or woody debris can be released into an approved zone of deposit without violating Alaska’s water quality standards. The one-acre size for the zones had been prior practice for at least some pre-1985 permits and some postAl985 individual NPDES permits. As noted by the EPA in the draft general permit, the one-acre size for the zones stemmed from interim guidelines promulgated by the Alaska Timber Task Force (“ATTF”) in 1985. As it was required to do, the EPA sought certification from Alaska before it finalized the proposed general permit for LTFs in Alaska. The Alaska Department of Environmental Conservation (“ADEC”) is the Alaska agency that provides such certification, and it follows its own public comment and review procedures before providing certification. The EPA noted this fact in the draft general permit, stating that “[p]ersons wishing to comment on State Certification of the proposed general NPDES permit should submit written comments within this public notice period to [ADEC].” In its first and second draft certifications, ADEC proposed that the zones of deposit be one acre of continuous bark coverage at least ten centimeters deep at any point. It also indicated that a zone of deposit could include patchy or discontinuous coverage outside the one acre of continuous coverage. It proposed that LTFs be required to submit remediation plans detailing “feasible” means of reducing bark and woody debris when an accumulation exceeded 1.5 acres of continuous coverage. In its final draft certification, which apparently was not circulated to the public for comment, ADEC placed no specific size limit on zones of deposit. Instead, it authorized each LTF’s zone to be its “project area,” or the entire area of water covered by its operations. ADEC maintained the requirement that LTFs propose feasible remediation measures, but the requirement would be triggered by an accumulation of one acre of continuous coverage at least ten centimeters deep at any point, rather than 1.5 acres. The EPA responded to this proposal with a letter expressing concern that this change made the requirements less stringent than they previously had been and thus did not comply with applicable antide-gradation laws, which prohibit changes that degrade, rather than improve, water quality. See Alaska Admin. Code tit. 18, § 70.015; see also 40 C.F.R. § 131.12 (requiring states to develop and adopt antide-gradation policies). ADEC replied that it proposed project-area zones because it believed that the one-acre limit did not accurately reflect what had in fact occurred in the past; that the one-acre limit was impracticable in a general permit as compared to individual permits; and that other changes in the definition of zones of deposit — such as including thinner accumulations and spotty, non-continuous accumulations — and remediation requirements made the proposal as effective, if not more effective, in maintaining water quality. The project-area definition for zones of deposit was incorporated into ADEC’s final certification for the EPA’s general LTF permit. The EPA accepted ADEC’s certification. The EPA then issued final general permits. Instead of the one general permit originally proposed, the EPA issued two general permits: one for pre-1985 LTFs, AK-G70-0000, and one for post-1985 LTFs, AK-G70-1000. Both permits incorporated ADEC’s project-area zone of deposit definition. Under the final permits, pre-1985 LTFs must submit notification to the EPA and to ADEC before engaging in activities that will release bark and woody debris. However, the notification is informational only and the LTFs may engage in the activities without any further action from the EPA. PosL-1985 LTFs must submit a notice of intent and then receive approval from the EPA before engaging in any activities that will release bark and woody debris. The public will not have the opportunity to comment before the EPA decides whether to give its approval. For either type of LTF, ADEC can determine that a project-area zone of deposit is not appropriate. For post-1985 LTFs, ADEC can inform the EPA that the LTF should go through an individual permit process, rather than being covered by the general permit. Ill A Under the Administrative Procedures Act, the EPA must provide the public with notice and an opportunity to comment before it issues NPDES permits. 5 U.S.C. § 553(b)-(c); 40 C.F.R. §§ 124.6(d), 124.10(a)(l)(ii), (b); see also NRDC v. EPA, 863 F.2d 1420, 1428-29 (9th Cir.1988) (applying notice and comment requirement to general NPDES permit). Like other agencies, the EPA “must provide notice sufficient to fairly apprise interested persons of the subjects and issues before the Agency.” Id. at 1429 (internal quotation marks and citations omitted). Of course, the final permit issued by the agency need not be identical to the draft permit. That would be antithetical to the whole concept of notice and comment. Indeed, it is “the expectation that the final rules will be somewhat different and improved from the rules originally proposed by the agency.” Trans-Pac. Freight Conference v. Fed. Mar. Comm’n, 650 F.2d 1235, 1249 (D.C.Cir.1980). Thus, “[t]he law does not require that every alteration in a proposed rule be reissued for notice and comment.” First Am. Discount Corp. v. Commodity Futures Trading Comm’n, 222 F.3d 1008, 1015 (D.C.Cir.2000). However, “a final rule which departs from a proposed rule must be a logical outgrowth of the proposed rule.... The essential inquiry focuses on whether interested parties reasonably could have anticipated the final rulemaking from the draft permit.” NRDC v. EPA, 863 F.2d at 1429 (internal quotation marks and citations omitted); see also 40 C.F.R. § 124.10 (setting forth specific public notice and comment requirements for the EPA). In determining this, one of the salient questions is “whether a new round of notice and comment would provide the first opportunity for interested parties to offer comments that could persuade the agency to modify its rule.” Am. Water Works Ass’n v. EPA, 40 F.3d 1266, 1274 (D.C.Cir.1994); see also Anne Arundel County v. EPA, 963 F.2d 412, 418 (D.C.Cir.1992); Am. Med. Ass’n v. United States, 887 F.2d 760, 768 (7th Cir.1989) (stating that “the relevant inquiry is whether or not potential commentators would have known that an issue in which they were interested was ‘on the table’ ”). On a petition for review from an agency decision, we determine in the first instance the adequacy of the agency’s notice and comment procedure, without deferring to an agency’s own opinion of the adequacy of the notice and comment opportunities it provided. NRDC v. EPA, 863 F.2d at 1428-29. A decision made without adequate notice and comment is arbitrary or an abuse of discretion. See 5 U.S.C. § 706(2)(A). B In this instance, we conclude that the EPA’s notice and comment procedure was inadequate because it did not afford interested parties the opportunity to comment on whether Alaska’s proposed change in the zone of deposit definition conformed to the substantive requirements of Alaska law and, if not, whether the change required the issuance of a conditional permit or the denial of the permit altogether. Under the CWA, the EPA has its own independent obligation to determine whether a permit will comply with the state’s water quality standards. See 33 U.S.C. §§ 1311(b)(1)(C), 1342(a)(1); 40 C.F.R. § 122.4(d); Dubois v. United States Dep’t of Agric., 102 F.3d 1273, 1300-01 & n. 33 (1st Cir.1996); In re Ina Rd. Water Pollution Control Facility, NPDES Appeal No. 84-12, 1985 WL 287130 (EPA Nov. 6,1985). In its draft permit, upon which public comment was solicited, the EPA noted: If issued, this general NPDES permit would authorize qualifying LTFs to discharge bark and woody debris into both near-shore and offshore marine waters in Alaska, except in areas excluded from coverage. The proposed general permit would not authorize new discharges into waters identified as critical or protected resources, waters which do not meet the ATTF siting guidelines, and waters already exceeding State Water Quality Standards for parameters relating to bark and woody debris. ADEC proposes to grant a one-acre zone of deposit for those LTFs authorized under this general permit. As noted earlier, the referenced one-acre zone of deposit area was consistent with then-existing Alaska regulatory practice. When it became apparent that Alaska’s draft certification proposed a different practice, EPA’s NPDES Unit Manager wrote the State to inquire, noting: The Department has changed its approach to the authorized Zone of Deposit for bark and wood debris from the approach contained in the ATTF Guidelines, which has been used for authorizing ZODs since the guidelines were developed. We understand that the Department intends to authorize a ZOD equal to the size of each LTF’s project area and that the Department does not intend to limit the project area to a specified, maximum size nor impose limiting criteria that would serve to maintain or contain the size of the project area throughout the term of the permit. In the draft final certification, the Department indicates that it will require Remediation Plans from permit-tees if the continuous coverage of bark and wood debris exceeds one acre and 10 centimeters at any point. However, the one acre/10 centimeter trigger is not a violation of the ZOD nor the State’s water quality standard for residue, thus, it is not a limit on the ZOD. Because the proposed “project area ZOD” is less stringent than previous ZODs for LTFs, in accordance with 40 C.F.R. § 124.53(e)(3), EPA requests a statement from the Department explaining how the proposed ZOD complies with state law. The Department should include in the statement how the ZOD meets its antidegradation policy at 18 AAC 70.015, and explain how the ZOD will protect beneficial uses found at 18 AAC 70.020(b)(2). The Department also needs to address how it is meeting the requirement in 18 AAC 70.210(a) that the “limit” of the ZOD be set by the Department. Upon reviewing Alaska’s response, the EPA issued a final permit approving Alaska’s new zone of deposit definition. However, the public was never notified that Alaska was proposing to redefine the allowable zone of deposit, nor was the public afforded the opportunity to comment on the proposed change, either at the state or federal level. In determining the adequacy of EPA’s notice and comment procedure as to this issue, the salient question is, as we have noted, “whether interested parties reasonably could have anticipated the final rule-making from the draft permit.” NRDC v. EPA, 863 F.2d at 1429. Given that the draft permit specifically referenced Alaska’s proposed “one-acre zone of deposit” and conformance with the ATTF guidelines, interested parties could not have reasonably anticipated that the final permit would sanction the use of project-area zones of deposit that could exceed one acre. The fact that interested parties did not anticipate the paradigm shift from the draft to the final permit is underscored by the contents of the instant petition for review, which raises for the first time numerous issues about the proposed change in the conception of zones of deposit. These are precisely the type of comments that should have been directed in the first instance to the EPA, but which understandably were not because of the inadequate notice. Because the EPA’s change of position from the draft permit was not “foreshadowed in proposals and comments advanced during the rulemaking,” S. Terminal Corp. v. EPA, 504 F.2d 646, 658 (1st Cir.1974), the “decision clearly caught petitioners ... by surprise,” Consumer Energy Council of Am. v. FERC, 673 F.2d 425, 446-47 n. 76 (D.C.Cir.1982). Further, interested parties are entitled to be fairly apprised of the subjects and issues before the agency in a permitting process. NRDC v. EPA, 863 F.2d at 1429. The public was not informed that EPA had raised the substantive issue about Alaska’s proposed change in its definition of zones of deposit. Indeed, the proposed alteration was almost the only substantive issue left for resolution prior to issuance of the final permit. In short, the interested parties did not know that a fundamental change in the zone of deposit definition “was ‘on the table.’ ” Am. Med. Ass’n, 887 F.2d at 768. The EPA argues that the draft permit’s references to the role of state law and the state certification process and the fact that the proposed zones of deposit might allow “patchy or discontinuous” bark coverage outside the one-acre zone of continuous coverage were sufficient to put interested parties on notice. However, nuance and subtlety are not virtues in agency notice practice. If the EPA were contemplating approving entirely new constructs for allowable zones of deposit and departing from the ATTF guidelines, it should have said so explicitly. More importantly, there is no question that the change was substantive. The EPA acknowledged as much in its letter to the State, noting that “[t]he Department has changed its approach ... from the approach contained in the ATTF Guidelines, which has been used for authorizing ZODs since the guidelines were developed.” Given the draft permit’s stated “heavy reliance” on the ATTF Guidelines, there is no doubt that there was a fundamental policy shift, rather than a natural drafting evolution, between the draft permit and the final permit. Given that the “final rule deviate[d] ... sharply from the proposal,” NRDC v. EPA, 863 F.2d at 1429, the EPA erred in not affording notice and soliciting further comments. C The fact that the certification process is vested with the state agency does not alter this conclusion. To be sure, the EPA does not act as a reviewing agency for state certification, and the proper forum for review of state certification is through applicable state procedures. 40 C.F.R. § 124.55(e). However, it is not the state certification that is at issue here; rather, it is the EPA’s independent statutory obligation under the CWA to ensure compliance with water quality standards, see 33 U.S.C. §§ 1311(b)(1)(C), 1342(a)(1), and its power to impose additional permit conditions necessary to meet that end, Dubois, 102 F.3d at 1300 & n. 33. The letters sent to and from the EPA and ADEC about the new definition make this point clear. The EPA considered whether the new definition of zones of deposit would ensure compliance with Alaska’s water quality standards and eventually made a final decision that it would. In making this decision, the EPA sought and considered the opinion of ADEC, but it did not seek and consider the opinions of other interested parties or the public in general. If the EPA had reached the opposite conclusion, and had added additional requirements to the final permits, Alaskan logging interests would surely have taken the position that notice and comment had been inadequate. Thus, the EPA erred by deciding whether the new definition of zones of deposit would reasonably ensure compliance with Alaska’s water quality standards without giving notice to the public and affording it the opportunity to comment on issues relevant to that decision. Because the public could not have reasonably anticipated that the final permit would embrace an entirely different standard for zones of deposit, the public’s ability to comment on whether the proposed permit complied with water quality standards was compromised. CONCLUSION Because the EPA did not provide notice or an opportunity to comment on whether the project-area definition for zones of deposit satisfies the requirements of Alaska law, the two new general permits must be remanded to the EPA for further proceedings. Because of this resolution of the case, we need not reach the other issues raised by the parties. PETITION GRANTED; REMANDED for further proceedings consistent with this opinion.

Miller v. Campbell County

EBEL, Circuit Judge. The plaintiffs-appellants, former homeowners in the Rawhide Village subdivision of Campbell County, Wyoming, seek damages for harm suffered when Rawhide Village was declared uninhabitable by the county commissioners of Campbell County. The plaintiffs filed suit against the Campbell County commissioners in the United States District Court for the District of Wyoming raising a battery of interrelated constitutional claims. The district court granted the defendants’ motion for summary judgment and dismissed all the plaintiffs’ claims. The plaintiffs on appeal argue that the district court erred in dismissing their Fifth Amendment takings claim and their Fourteenth Amendment substantive and procedural due process claims. We agree with the district court that the plaintiffs’ takings claim is not ripe for review. We also find that the district court properly dismissed the plaintiffs’ substantive and procedural due process claims. We therefore affirm the district court. FACTS In February 1987, methane and hydrogen gasses were discovered seeping from the ground in the southern end of the Rawhide Village subdivision located in Campbell County, Wyoming. On February 24 through 26, 1987, the county commissioners ordered the immediate evacuation of nine homes in the subdivision. On March 6, 1987, an additional twenty-two homes were ordered evacuated. Later, on March 26, all but seven of these thirty-one displaced homeowners were allowed to return to their homes. By the end of May, it had been reported that a number of Rawhide residents were contracting strange maladies. In addition, the County Health Officer, Dr. George B. McMurtrey, sent a letter to the Governor of Wyoming suggesting that he declare the subdivision a disaster area based partly upon “information he had received from primary care physicians related to specific problems within the Rawhide Village subdivision.” On May 29, the commissioners held an emergency meeting and passed a resolution declaring the subdivision uninhabitable. The commissioners nevertheless decided to wait until June 2 to make a final decision as to the timetable they would adopt for the evacuation. On June 2, the commissioners passed a resolution requiring that the subdivision be evacuated by July 31, 1987. At the end of July, the Federal Emergency Management Authority (“FEMA”) issued a statement to the effect that the subdivision was not uninhabitable. As a result, on July 28, 1987, the commissioners rescinded the July 31 deadline for evacuation. However, the commission left intact that portion of the June 2 resolution declaring the subdivision to be uninhabitable. Finally, on September 4, 1987, President Reagan declared the subdivision a disaster area, thereby paving the way for the disbursement of federal relief aid to the Rawhide residents. The plaintiffs contend that the Rawhide subdivision was not uninhabitable and that the commissioners declared the subdivision uninhabitable only in order to procure federal assistance from FEMA. They claim, therefore, that the defendants wrongly deprived them of their property in violation of the Constitution. The United States District Court for the District of Wyoming granted the defendants’ motion for summary judgment and dismissed the plaintiffs’ claims. The plaintiffs now appeal to this court. DISCUSSION The plaintiffs have raised three constitutional claims. They claim first that the evacuation orders of May 29 and June 2 constituted a taking in violation of their Fifth Amendment rights as incorporated against the states through the Fourteenth Amendment. Second, they claim that their Fourteenth Amendment substantive due process rights were violated by the defendants’ actions. Third, they claim that their Fourteenth Amendment procedural due process rights were similarly violated. We will address each of these in turn. I. Fifth Amendment Takings Claim The plaintiffs claim that the defendants violated their Fifth Amendment rights by “taking” the plaintiffs’ homes from them. The district court dismissed this claim on the grounds that it was not yet ripe for review. We agree. The Fifth Amendment does not prohibit the government from taking its citizens’ property; it merely prohibits the government from taking property without paying just compensation. U.S. Const, amend. V. Before a federal court can properly determine whether the state has violated the Fifth Amendment, the aggrieved property owner must show first that the state deprived him of his property, and second, that the state refused to compensate him for his loss. See Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194-97, 105 S.Ct. 3108, 3120-22, 87 L.Ed.2d 126 (1985). In those states that allow aggrieved property owners to bring an inverse condemnation action in order to recover compensation for property taken by the state, a Fifth Amendment takings claim is not ripe until the aggrieved property owner “has used the procedure and been denied just compensation.” Id. at 195, 105 S.Ct. at 3121. In the instant case, the plaintiffs have pending under Wyoming law an inverse condemnation action to recover compensation for the loss of their homes. Appellee's Br. at 13. Because the plaintiffs have not yet been turned away empty-handed, it is not clear whether their property has been taken without just compensation. Therefore, under Williamson County, we affirm the district court holding that plaintiffs Fifth Amendment takings claim is not yet ripe for review in federal court. II. Due Process Claims In addition to invoking the Just Compensation Clause of the Fifth Amendment, the plaintiffs contend that the defendants’ actions violated their Fourteenth Amendment due process rights. The Fourteenth Amendment embodies three different protections: (1) a procedural due process protection requiring the state to provide individuals with some type of process before depriving them of their life, liberty, or property; (2) a substantive due process protection, which protects individuals from arbitrary acts that deprive them of life, liberty, or property; and (3) an incorporation of specific protections afforded by the Bill of Rights against the states. See Daniels v. Williams, 474 U.S. 327, 337, 106 S.Ct. 662, 677, 88 L.Ed.2d 662 (1986) (Stevens, J., concurring). Because the Just Compensation Clause of the Fifth Amendment imposes very specific obligations upon the government when it seeks to take private property, we are reluctant in the context of a factual situation that falls squarely within that clause to impose new and potentially inconsistent obligations upon the parties under the substantive or procedural components of the Due Process Clause. It is appropriate in this ease to subsume the more generalized Fourteenth Amendment due process protections within the more particularized protections of the Just Compensation Clause. The Supreme Court’s decision in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), supports our analysis. In Graham, the plaintiff accused law enforcement officers of injuring him during an investigatory stop. He claimed that the excessive force used violated both his Fourth Amendment and his Fourteenth Amendment substantive due process rights. The Supreme Court rejected his Fourteenth Amendment claim: “Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.” Graham, 490 U.S. at 395, 109 S.Ct. at 1871; cf. Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986) (refusing to consider Fourteenth Amendment Due Process claim by prison inmate for excessive force because Eighth Amendment “serves as the primary source of substantive protection to convicted prisoners” in such cases). We are aware of the Ninth Circuit case of Sinaloa Lake Owners Ass’n v. City of Simi Valley, 882 F.2d 1398 (9th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990). There, the plaintiffs alleged that their privately owned dam and lake was destroyed by California authorities in violation of the Fifth Amendment as well as the substantive and procedural branches of the Fourteenth Amendment Due Process Clause. The Ninth Circuit dismissed the plaintiffs’ takings claim as being unripe. However, it held that the plaintiffs’ procedural and substantive due process claims were viable. Because the facts of that case are so different from the facts of this case, we cannot say that we are in conflict with Sinaloa Lake. All that can be said is that under the facts of our case we conclude that the Just Compensation analysis is controlling whereas in Si-naloa Lake the Ninth Circuit felt that the conduct there went beyond the penumbra of the Just Compensation Clause. In any event, even if we were to evaluate plaintiffs’ substantive and procedural due process claims separately from their Just Compensation claim, we would find no due process violation here. The Supreme Court has stated that “due process ordinarily requires an opportunity for ‘some kind of hearing’ prior to the deprivation of a significant property interest.” Hodel v. Virginia Surface Mining and Recl. Ass’n. 452 U.S. 264, 299, 101 S.Ct. 2352, 2372, 69 L.Ed.2d 1 (1981) (citing Parrott v. Taylor, 451 U.S. 527, 540, 101 S.Ct. 1908, 1915, 68 L.Ed.2d 420 (1981) overruled on other grounds by Daniels, 474 U.S. at 330-31, 106 S.Ct. at 664; Boddie v. Connecticut, 401 U.S. 371, 374, 91 S.Ct. 780, 784, 28 L.Ed.2d 113 (1971)). However, where the state is confronted with an emergency, it may deprive an individual of his or her property without first providing a hearing. Hodel v. Virginia Surface Mining and Recl. Ass’n, 452 U.S. at 299-300, 101 S.Ct. at 2372 (1981). The facts of this case do not bear out the defendants’ claim that they were confronted with an emergency of such magnitude that they could totally avoid any procedural due process obligations that they may have under the Fourteenth Amendment. Although the plaintiffs were told on May 29 and June 2 that their homes were uninhabitable, the evacuation was not set to occur until July 31 — two months later. This two-month long delay belies the defendants’ claim that they were confronted with such an emergency that a predeprivation hearing could not be provided. Nevertheless, it is clear that plaintiffs had at least two opportunities to present their position orally to the county commissioners, and they had ample notice of the pending orders to vacate such that they couíd have made written submissions to the county commissioners had they so wished. This process, which was available to plaintiffs, must be considered in the context that the defendants had a legitimate governmental duty to act in this situation with some urgency. Further, the condemnation process (or a revival of plaintiffs’ Just Compensation claim should condemnation prove to be inadequate) offers the plaintiffs a sufficient post-deprivation hearing to obtain just compensation for the loss of their property. In this particular context, we hold that plaintiffs were offered adequate procedural due process. With regard to plaintiffs’ substantive due process claims, we similarly find no violation. The defendants had an obvious need to act with considerable dispach because of the potential danger to its citizens. The defendants’ actions were reasonable and measured, with appropriate concern for the situation and the interests of all involved. We cannot say on this record that the defendants’ actions were arbitrary, capricious and unreasonable. CONCLUSION The district court order is AFFIRMED. . In addition to naming the Campbell County commissioners as defendants, the plaintiffs sued the County of Campbell, the Board of County Commissioners of the County of Campbell, the Campbell County Sheriffs Department, the Campbell County Health Department, the Campbell County Fire Board, and the Campbell County Emergency Services Agency. These defendants in turn filed third party actions against the United States, the Federal Emergency Management Agency, Julius W. Becton, Jr. (the Director of the Federal Emergency Management Agency), David P. Grier, IV (the Coordinating Officer for Rawhide Village for the Federal Emergency Management Agency), and Amax Coal Company. . It is not clear from the record whether a final evacuation order was entered. . There are two other related cases that were filed in the United States District Court for the District of Wyoming. The plaintiffs filed suit against the Amax Coal Company, alleging that it had caused the methane and hydrogen gas to leak into the subdivision. Amax operated a large coal mine operation located near the subdivision. This case was settled for an undisclosed amount on April 26, 1989. In addition, one of the homeowners, H. Douglas Miller, filed suit against the defendants on the grounds that he was improperly denied access to his home and was arrested when he tried to gather some of his tools. The district court granted the defendants' motion for summary judgment and dismissed his claims. . See Miller v. Campbell County, 722 F.Supp. 687 (D.Wyo.1989). In the instant case, the district court, in its Order granting summary judgment for the defendants, adopted the legal conclusions and factual findings from the earlier Miller case. .On their original notice of appeal, the plaintiffs used an "et al.” designation for everyone but the first named plaintiff-appellant. However, the district court granted the plaintiffs’ timely motion to extend their time to file the notice of appeal, and they filed a notice of appeal that correctly identified every party appealing the district court’s summary judgment dismissal. The first defective notice of appeal was never dismissed. As a result, we have two separate docketing numbers for these two appeals. . In light of our rulings on these issues, infra, we need not address the issue of qualified immunity. . We need not address whether a taking might ever violate substantive or procedural due process without violating the Just Compensation Clause. We hold only that there is nothing in this record that would warrant a separate due process analysis over and above a consideration of the plaintiffs’ more precise claims based on the Just Compensation Clause. . The Ninth Circuit attempted to distinguish Graham: “Graham does not, however, bar substantive due process analysis altogether. A plaintiff may still state a claim for violation of substantive due process where it is alleged that the government has used its power in an abusive, irrational or malicious way in a setting not encompassed by some other enumerated right.” Sinaloa, 882 F.2d at 1408-09 n. 10. (Emphasis added). In the instant case, the plaintiffs’ due process claims are encompassed within the Just Compensation Clause. . In determining that the emergency exception was applicable, the district court placed a great deal of weight on the plaintiffs’ pleadings filed in the Amax case. In the Amax case, the plaintiffs sued the Amax Coal Company alleging that Amax was responsible for the significant seepage of a substantial amount of methane and hydrogen gasses into the subdivision. The plaintiffs claimed that as a result, they suffered substantial property loss, personal injuries, and emotional injuries. Here, the district court believed that these pleadings established that the commissioners were confronted with an emergency. The plaintiffs’ pleadings from the Amax case constitutes some evidence that there was an emergency. However, because the district court was deciding a summary judgment motion, it was required to resolve all conflicts in the evidence in favor of the nonmoving party — in this case the plaintiffs. Because the prior pleadings evidence taken from the Amax case conflicted with the evidence supporting the plaintiffs’ claim that there was no emergency, the district court should not have granted summary judgment for defendants on the basis of the emergency exception. . The taking did not occur when the resolutions were adopted; rather the taking occurred when the plaintiffs were actually required permanently to vacate their premises. See Kirby Forest Industries v. United States, 467 U.S. 1, 104 S.Ct. 2187, 81 L.Ed.2d 1 (1984). There, the Court rejected the aggrieved property owner's claim that the taking occurred when the government initiated condemnation proceedings by filing a notice of lis pendens. Id. at 14-15, 104 S.Ct. at 2196. Instead, the Court held that the taking occurred at the time the title was transferred to the government in exchange for compensation. The Court noted that until the title passed, the government’s "interference with petitioner’s property interests [was not] severe enough to give rise to a taking....” Id.

Davis Enterprises v. United States Environmental Protection Agency

OPINION OF THE COURT SLOVITER, Circuit Judge. I. The appellants before us, Davis Enterprises et al., who are the defendants in private civil litigation, sought permission from the Environmental Protection Agency (EPA) to take the deposition of an agency employee as a fact witness for use in refuting damage claims brought by homeowners as a result of a gasoline spill. The EPA refused, and Davis Enterprises et al. filed suit. The district court, on the basis of a stipulation as to the relevant facts, granted summary judgment for the EPA, holding that the EPA’s decision was unreviewable and, alternatively, that even if the decision were reviewable, the EPA did not abuse its discretion. II. This appeal arose as a byproduct of litigation over liability for an underground gasoline spill in Newtown, Pennsylvania. A contractor installing underground television cable punctured an underground petroleum pipeline owned and operated by one of the Appellants before us. Unleaded gasoline leaked from the puncture, and gasoline vapors entered the basements of homes in a nearby housing development. The homeowners filed a class action in a Pennsylvania state court. Homeowners who opted out of the class action have filed individual suits against Appellants, which are still pending. In the class action, the liability and damages phases were bifurcated, and Appellants were found liable for causing the spill. The state litigation is now in the damage phase, in which the homeowners must establish their individual damages. After the incident, the homeowners, not wanting to rely on air quality tests performed at the behest of defendant Sun Pipe Line Company (the owner of the pipeline), requested independent testing through the Pennsylvania Department of Health (DOH). The DOH arranged to have the tests performed by the EPA, and Theodore Erdman was one of the EPA employees who participated in the EPA’s air monitoring process. Appellants, who allege that the results of the EPA testing are favorable to their position that the homeowners suffered little or no damage, seek Erdman’s testimony for use at trial on the homeowners’ individual damages. They have received the results of the EPA’s air monitoring in documentary form, but they claim that Erdman’s testimony is necessary because the homeowners have refused to admit the truthfulness of the EPA results without the opportunity to cross-examine Erdman. Appellants assert the concern that the test results may not be admissible under the Pennsylvania law of evidence in light of the homeowners’ objections. It is not our function on this appeal to decide whether the EPA’s reports are or are not admissible under Pennsylvania law absent Erdman’s testimony. Appellants represented to us at oral argument that they requested an in limine ruling on the admissibility of the EPA data from the Pennsylvania trial court, but that court refused to make such a ruling. Of course, that determination, if favorable to Appellants, would have made this tangential federal litigation unnecessary and would have spared all parties the delay attendant to the federal courts’ determination of the issue before us on appeal. For purposes of this appeal, we accept Appellants’ representation that if they are unable to have the EPA results admitted, it could hamper their own experts’ attempts to prove that the spill did not cause damage to the homeowners or their property because Pennsylvania law requires that expert opinion testimony be based on facts admitted in evidence. See Murray v. Siegal, 413 Pa. 23, 195 A.2d 790 (1963). Several times Appellants sought permission from the EPA to take a videotape deposition of Erdman at his office which any interested homeowner could attend. In denying the request, the EPA’s Regional Counsel (Region III) Bruce Diamond, referring to the applicable EPA regulations governing such requests, 40 C.F.R. § 2.401 et seq. (1988), advised Appellants that he had determined that allowing the testimony was not clearly in the EPA’s interest, that the EPA would appear to be taking sides in a litigation in which it was not a party, and that the cumulative effect of granting such requests could have an impact on the agency’s resources. In making this decision, the EPA’s Regional Counsel had before him Erdman’s supervisor’s letter stating that Erdman’s services were necessary to help clear up a backlog of chemical plant and refinery inspections. The EPA did offer to have Erdman submit an affidavit in lieu of his requested testimony, but this was not satisfactory to Appellants because it would not provide the homeowners with the desired opportunity for cross-examination, and the concomitant assurance of the admissibility of the report. Appellants made a similar request for the testimony of an EPA employee from Region I who was also involved in the monitoring process at issue. This request was denied in Region I, and litigation seeking to compel the EPA to produce the employee was unsuccessful. See Appeal of Sun Pipeline Co., 831 F.2d 22 (1st Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 2821, 100 L.Ed.2d 922 (1988). Following the EPA’s refusal to permit the Erdman deposition, Appellants brought suit against the EPA and Diamond in the United States District Court for the Eastern District of Pennsylvania, alleging that the EPA’s decision refusing to permit the requested deposition was invalid as an abuse of its discretion. The parties stipulated the facts and the case was decided on cross motions for summary judgment. The district court concluded that judicial review was “not available pursuant to 5 U.S.C. § 701(a)(2).” App. at 252. It held further that even if judicial review were available, “the EPA’s decision ... was not arbitrary, capricious or an abuse of discretion and was rationally connected to the facts and in accordance with law.” Id. Our scope of review of the district court’s decisions on both issues is plenary. III. We consider first the EPA’s contention that the decision to prohibit Appellants from deposing Erdman during working hours is not reviewable. Appellants have not challenged the validity of the EPA’s power to promulgate regulations which grant the agency discretion to determine whether to comply with subpoenas or requests for employee testimony in private litigation. See United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951) (sustaining Attorney General’s power to issue order governing protection of department’s records in response to subpoena). The EPA’s authority to govern its internal affairs is derived from 5 U.S.C. § 301, which provides that: The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public. 5 U.S.C. § 301 (1982). Pursuant to this statutory provision, the EPA has promulgated regulations governing the testimony of its employees in private suits. When voluntary testimony of an employee is sought, the regulations provide that: A request for testimony by an EPA employee under § 2.402(b) must be in writing and must state the nature of the requested testimony and the reasons why the testimony would be in the interests of EPA. Such requests are immediately sent to the General Counsel or his designee ... [who] determines whether compliance with the request would clearly be in the interests of EPA and responds as soon as practicable. 40 C.F.R. § 2.403 (1988). The purpose of the EPA regulations on this subject is “to ensure that employees’ official time is used only for official purposes, to maintain the impartiality of EPA among private litigants, to ensure that public funds are not used for private purposes, and to establish procedures for approving testimony or production of documents when clearly in the interests of EPA.” 40 C.F.R. § 2.401(c) (1988). Although review of agency actions is generally available to “person[s] suffering legal wrong because of agency action” pursuant to 5 U.S.C. § 702 (1982), the EPA contends that a statutory exception to the general rule of reviewability applies to the decision not to permit testimony of an EPA employee. It relies on 5 U.S.C. § 701(a) which contains statutory exceptions to re-viewability of agency action. Section 701(a) provides that: (a) This chapter applies, according to the provisions thereof, except to the extent that— (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law. 5 U.S.C. § 701(a) (1982). The EPA contends that the section 701(a)(2) exception to reviewability is applicable here because the EPA’s statutory authority under 5 U.S.C. § 301 to regulate the conduct of its employees gives it unlimited discretion in such matters. In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971), the Supreme Court interpreted section 701(a)(2) as establishing a broad presumption in favor of reviewability, holding that the exception applied only when there is no law to apply. Thus, the Court held that a statutory provision prohibiting the Secretary of Transportation from authorizing federal aid to construct a highway through a public park unless there was “no feasible and prudent alternative” provided law on which judicial review could be based. Id. at 410-13, 91 S.Ct. at 820-22. More recently, the Court, in holding that the FDA’s refusal to take enforcement actions against states that used drugs not approved for use in human executions to inflict capital punishment by lethal injection was not reviewable, attempted to harmonize section 701(a)(2) making unreviewable action committed to agency discretion by law with the abuse of discretion standard of review embodied in section 706(2)(A). See Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). It stated, “review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Id. at 830, 105 S.Ct. at 1655. We have interpreted Chaney as not changing the presumption of reviewability of agency action under the APA. See Chong v. Director, United States Information Agency, 821 F.2d 171, 175 n. 3 (3d Cir.1987). Appellants point to the criteria specified in the regulations for allowing the testimony in arguing that there is law to be applied by a reviewing court. The EPA on the other hand contends that 5 U.S.C. § 301 provides unfettered discretion on matters pertaining to control of its employees, that the regulations do no more than provide a non-exclusive set of factors to be considered in making decisions as to whether to permit employee testimony in a given case, and that a reviewing court has no legal standard to apply. Thus, argues the EPA, the exception in 5 U.S.C. § 701(a)(2) is met. This court in Local 2855, AFGE (AFL-CIO) v. United States, 602 F.2d 574 (3d Cir.1979), set forth the analytical framework to be followed before the court may determine that an agency decision is unreviewable under section 701(a)(2). To so hold, we must consider whether: 1) the action involves broad discretion, not just the limited discretion inherent in every agency action, id. at 578; 2) the action is the product of political, military, economic, or managerial choices that are not readily subject to judicial review, id. at 579; and 3) the action does not involve charges that the agency lacked jurisdiction, that the decision was motivated by impermissible influences such as bribery or fraud, or that the decision violates a constitutional, statutory, or regulatory command, id. at 580. Applying these criteria in that case we held that the army’s decision to contract out stevedoring services to a private concern was not reviewable. We focused primarily on the absence of fixed statutory or regulatory standards, and secondarily on the fact that the decision as to how to utilize army resources was particularly within the army’s expertise. Id. at 580-83. We have, however, held that when agency regulations or internal policies provide sufficient guidance to make possible federal review under an abuse of discretion standard, agency decisions are not unreviewable, even absent express statutory limits on agency discretion. In Chong, we had before us United States Information Agency regulations covering waiver of the two-year foreign residency requirement for exchange visitors seeking to apply for permanent residency status. We held that because these regulations required the agency to “review the policy, program, and foreign relations aspects of the case” and “transmit a recommendation to the Attorney General for decision,” 22 C.F.R. 514.32, they provided sufficient guidance to reviewing courts and were therefore reviewable. Chong, 821 F.2d at 175-76; see also Hondros v. United States Civil Service Comm’n, 720 F.2d 278, 294 (3d Cir.1983) (official memorandum from Marshal’s Office stating that the Office would utilize Civil Service certification procedure in making certain hiring decisions constituted policy, and thus the administration of such policy could be reviewed under an arbitrary, capricious, or abuse of discretion standard). This case is comparable to Chong, where the regulations did not state a legal standard but merely listed the factors the agency must consider in reaching a decision. The EPA regulations require the agency to consider whether allowing an employee to testify in a given case is in the agency’s interest, see 40 C.F.R. § 2.403, and specify a number of relevant factors, i.e, the appearance of taking sides and the effect on agency resources, see 40 C.F.R. § 2.401(c). Once the agency has articulated factors to be considered in deciding requests for employee testimony, the agency effectively has limited its own discretion and would not be free to make a decision based exclusively on factors not contained in the regulations. See Service v. Dulles, 354 U.S. 363, 388, 77 S.Ct. 1152, 1165, 1 L.Ed.2d 1403 (1957). The EPA argues that under the second Local 2855 criterion the factors identified in the regulations involve political, managerial, and economic concerns that are not susceptible to meaningful judicial review. Although some factors do trench on managerial concerns, we do not believe that the factors enumerated in the regulations, taken as a whole, are so devoid of objective benchmarks as to make them unreviewable. We thus conclude, as in Chong, that there is sufficient law to apply to make the agency action reviewable. IV. We turn then to the merits of the EPA’s decision to reject Appellants’ request for Erdman’s deposition testimony. We note that after the argument in this case the Fourth Circuit sustained the EPA’s right to prevent the testimony of an EPA employee pursuant to a state court subpoena. See Boron Oil Co. v. Downie, 873 F.2d 67 (4th Cir.1989). Although in Boron, unlike here, the EPA relied on a sovereign immunity theory and that was the basis for the court’s decision, we nonetheless find that opinion instructive. In addition, there are, as the Boron court stated, numerous cases in which the courts have held that a federal employee may not be compelled to obey a subpoena contrary to the agency’s instructions under valid agency regulations. See, e.g., Swett v. Schenk, 792 F.2d 1447 (9th Cir.1986); Giza v. Department of Health Education & Welfare, 628 F.2d 748 (1st Cir.1980). In any event, the issue as framed by the parties before us is whether the agency’s decision was arbitrary, capricious, or an abuse of discretion, see 5 U.S.C. § 706(2)(A) (1982); see also Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973) (per curiam), and whether it was rationally connected to the facts and in accordance with the law, see Shane Meat Co. v. United States Department of Defense, 800 F.2d 334, 336 (3d Cir.1986). Chong counsels that where the regulations which provide the governing law vest the agency with “rather broad discretion,” our scope of review is “severely limited.” Chong, 821 F.2d at 176. We are only free to determine whether the agency followed its own guidelines or committed a clear error of judgment. See Overton Park, 401 U.S. at 416, 91 S.Ct. at 823. The record makes clear that the EPA recognized and considered the factors set forth in 40 C.F.R. § 2.401(c) in making its decision. Both of the EPA’s letters denying Appellants’ request expressly articulate the EPA’s concern that permitting Erdman to testify as a witness for the Appellants would make it appear that the agency was taking sides in the litigation, the concern that the cumulative effect of allowing such testimony would constitute a drain on EPA resources, and the conclusion that such testimony was not in the EPA’s interest. In essence, Appellants’ argument that EPA did not follow its own regulatory criteria reduces to the argument that they do not agree with the EPA’s decision. While we may not have made the same decision as the EPA did, we are not free to substitute our judgment for that of the agency on this issue. See Overton Park, 401 U.S. at 416, 91 S.Ct. at 823. Although it is certainly arguable that permitting Erdman to give a deposition based on facts within his knowledge would not create the appearance of taking sides, the EPA’s conclusion to the contrary is not capricious. It is important to note that EPA has not withheld relevant information as to the test results. The parties were given the information in written form and the EPA agreed to provide Erdman’s testimony in the form of an affidavit. For strategic reasons, the Appellants, defendants in the private litigation, seek to introduce the EPA reports and the private plaintiffs oppose the introduction. The EPA’s decision that if it assists Appellants in their trial tactics it would appear to be taking sides is thus not irrational. Similarly, Appellants have not shown that the agency’s judgment that the potential cumulative impact of granting such requests would constitute a drain on the agency’s resources is arbitrary. Notwithstanding Appellants’ argument that Erd-man’s deposition, which they have volunteered to take at his office, would only take a minimal amount of time, there is no guarantee that cross-examination would not be lengthy. In addition to the class action suit, there are pending suits by opt-out class members against whom Appellants would also want to use Erdman’s testimony and who therefore might also be entitled to cross-examination. Moreover, Appellants’ argument about the minimal burden in this case fails to take into account the EPA’s legitimate concern with the potential cumulative effect of granting such requests. EPA argues that private litigation follows each environmental issue. Its concern about the effects of proliferation of testimony by its employees is within the penumbra of reasonable judgmental decisions it may make. Nor can we say that the EPA abused its discretion in determining that Erdman’s testimony would not be in its interest. The EPA has defined its interest as the efficient use of the resources allotted to it, which the regulations explain encompasses considerations such as use of the employee’s time “only for official purposes” and ensuring “that public funds are not used for private purposes.” Id. § 2.401(c). EPA’s public mission is that of “developing and enforcing environmental standards and other policies.” 50 Fed.Reg. 32,386 (Aug. 9, 1985). The EPA could reasonably anticipate that its employees would be the subject of frequent requests for testimony arising from such duties. As the Fourth Circuit stated in Boron Oil, the EPA “has a valid and compelling interest in keeping its On-Scene Coordinators, as a class, free to conduct their official business without the distractions of testifying in private civil actions in which the government has no genuine interest.” Boron Oil, 873 F.2d at 71. The regulation permits the EPA to withhold permission for employee testimony when the information which is the subject of such inquiry was acquired in the course of the employee’s performance of official duties or because of the employee’s official status. See 40 C.F.R. § 2.401. Thus, it does not cover the employee’s testimony on facts acquired as a private citizen, which is consistent with the general obligation of citizens to provide testimony. Moreover, the regulations do not apply when the EPA is a party, and thus they make no attempt to shield EPA employees from discovery in such situations. Even when the EPA is not a party, the regulations distinguish between the testimony of an EPA employee when requested by another federal agency, or local or state legislative or executive body, see 40 C.F.R. § 2.402(a), and such testimony when requested in private litigation, see id. § 2.402(b). Appellants do not challenge the rationality of such a distinction. We do not gainsay that there is a generalized public interest in having public employees cooperate in the truth seeking process by providing testimony useful in litigation. While, as we have stressed, it is not likely that we would have interpreted the EPA's interests as narrowly as it has done here, we cannot say that it abused its discretion in deciding that its interest in having the time of its employees (and therefore taxpayers’ money) spent on agency business outweighed the interests of Appellants in having the EPA reports admitted into evidence in private litigation to which the EPA was not a party. The Appellants also argue that the EPA abused its discretion because it departed from its established policy of granting requests for employee testimony in similar private litigation. Appellants base their argument on their analysis of EPA documents concerning requests for testimony in other cases which the EPA furnished to Appellants pursuant to a request under the Freedom of Information Act. Assuming without deciding that such an inquiry is appropriate under our severely limited scope of review, we conclude that Appellants’ argument must fail. A review of the agency decisions and the statistics concerning the EPA’s treatment of requests for testimony in private litigation cited by Appellants does not establish that there is a policy to grant employees the right to testify as factual witness in such cases. In many of the cases cited by Appellants, the EPA clearly articulated the reason that allowance of such testimony was in its interest, such as, defending the agency’s reputation against charges of delay or misconduct in handling matters at issue in the litigation. The fact that the deciding officer in another region may have on a few occasions granted permission to an employee to testify in private litigation under circumstances that are arguably similar to those involved here is entirely consistent with the discretionary nature of the decision in question. Furthermore, the statistics referred to by the Appellants reveal that in the first two years after the regulations were promulgated, the EPA received seventy-one requests or subpoenas for testimony in private litigation and granted permission in only twenty-five (35.2% of the cases). EPA Region III, the region involved in this case, received eight requests during that period and granted none. The statistics suggest a nationwide tendency to deny such requests, and reveal a consistent regionwide policy to deny them. Appellants have thus failed to show that EPA’s decision to deny the deposition in this case was such a deviation from its usual procedure as to constitute an abuse of discretion. V. In summary, we reject the district court’s conclusion that the EPA’s determination is unreviewable. Nonetheless, we conclude, as did the district court in its alternative holding, that the EPA did not abuse its discretion or otherwise err in preventing Erdman from using agency time to give deposition testimony on Appellants’ behalf in private litigation. This appeal raises no challenge to the EPA’s authority to promulgate the regulation governing use of its employees’ time, and its decision in this case falls within the parameters of the agency’s discretion as set forth in the applicable statute and regulations. For the foregoing reasons, we will affirm the judgment of the district court. . In Sun Pipeline, Appellants raised the issues which they have raised here only on motion for reconsideration. The First Circuit upheld the district court's denial of the motion for reconsideration on the ground that appellants there had attempted to use the motion for reconsideration to change their theory of the case, and because they had not complied with the EPA procedure for requesting such testimony. 831 F.2d at 25. The court thus did not address the merits of the arguments raised here. Id. . The class as originally certified was composed of 200 homeowners. The record before us does not show how many members of the class assert damage claims or the number of suits filed by opt-out class members. . Although the regulations do not apply "[w]here employees provide expert witness services as approved outside activities,” 40 C.F.R. § 2.401(b)(3), the EPA has taken the position that Erdman’s testimony pursuant thereto would be inconsistent with the regulation that prohibits actions which “would result in or create the reasonable appearance of ... [u]sing public office for private gain.” 40 C.F.R. § 3.103(d) (1988). The validity of the EPA's interpretation in this respect is not before us. . We emphasize that, of course, the EPA monitoring results may in fact be admissible in the Pennsylvania damage actions, even without Erd-man’s testimony.

Davis Enterprises v. United States Environmental Protection Agency

WEIS, Circuit Judge, dissenting. I agree with the majority that the EPA’s action here is subject to review by the courts. I dissent, however, from the holding that the agency’s action was not arbitrary and capricious. The right of a governmental agency to withhold information and testimony from judicial proceedings is a controversial matter that is far from settled. The decision in United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951), is sometimes cited for the proposition that an agency head is free to withhold evidence from a court. But the Supreme Court in Touhy specifically refused to reach that question. Id. at 467, 71 S.Ct. at 419. The Court held that a Justice Department official acting on orders of the Attorney General could not be held in contempt for failing to produce records. In effect, the Court created what might be termed a type of immunity for the subordinate official who otherwise would be caught in the unpleasant dilemma of refusing to obey either an order of his superior or one issued by a court. In the end, the Court concluded that the wrong person had been subpoenaed. Touhy immunity for a subordinate was the controlling issue in cases where the governmental agency was not a party, such as Swett v. Schenk, 792 F.2d 1447 (9th Cir.1986), and Smith v. C.R.C. Builders Co., 626 F.Supp. 12 (D.Colo.1988). In the present case, by contrast, the issue of whether the EPA properly refused to permit its employee to testify is squarely before us. The action of the EPA in this instance rides roughshod over one of the fundamental maxims of the law — “the public has a right to every man’s evidence.” The Supreme Court has on numerous occasions reiterated Lord Hardwicke’s articulation of that long-standing common law precept. E.g., Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 912, 63 L.Ed.2d 186 (1980); United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974); Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626 (1972); United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950). Declining to even mention this basic tenet, the agency asserts that its own self-serving regulation grants the right to withhold testimony unless the EPA in its unreviewable discretion determines that granting permission “would clearly be in the interests of EPA.” 40 C.F.R. § 2.403. Plaintiffs did not contest the validity or breadth of this regulation in the district court, and precedents of our Court bar consideration of an issue not presented to the trial judge in the first instance. E.g., Halderman v. Pennhurst State School & Hosp., 673 F.2d 628, 639 (3d Cir.1982) (in banc) (citing Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976)), cert. denied, 465 U.S. 1038, 104 S.Ct. 1315, 79 L.Ed.2d 712 (1984); Caisson Corp. v. Ingersoll-Rand Co., 622 F.2d 672, 680 (3d Cir.1980); Newark Morning Ledger Co. v. United States, 539 F.2d 929, 932 (3d Cir.1976). Therefore, our review is limited to whether, assuming the regulation to be valid, the agency’s action was proper. I will not lengthen the discussion here by taking issue with the majority’s application of the arbitrary and capricious standard of review, because even allowing the EPA broad discretion, the decision should not stand. The determination of whether a given agency action is arbitrary or capricious may not take place in a vacuum — the facts and general principles of law must be considered. Differing circumstances can excuse conduct in some instances and fault it in others. In Branzburg, the Court noted Bentham’s famous exposition of the duty to produce evidence in court. Because his words are pertinent here, they bear repeating: “Are men of the first rank and consideration — are men high in office — men whose time is not less valuable to the public than to themselves — are such men to be forced to quit their business, their functions, and what is more than all, their pleasure, at the beck of every idle or malicious adversary, to dance attendance upon every petty cause? Yes, as far as it is necessary, they and everybody.... Were the Prince of Wales, the Archbishop of Canterbury, and the Lord High Chancellor, to be passing by in the same coach, while a chimney-sweeper and a barrow-woman were in dispute about a halfpennyworth of apples, and the chimney-sweeper or the barrow-woman were to think proper to call upon them for their evidence, could they refuse it? No, most certainly.” Branzburg, 408 U.S. at 688 n. 26, 92 S.Ct. at 2660 n. 26 (quoting 4 The Works of Jeremy Bentham 320-21 (J. Bowring ed. 1843)). Professor Wigmore was emphatic in his support for the obligation. He wrote that society has the right to the testimony because the demand comes from “the community as a whole — from justice as an institution and from law and order as indispensable elements of civilized life.” 8 J. Wig-more, Evidence § 2192, at 73 (J. McNaughton rev. ed. 1961). The particular cause before the court may be “petty and personal, but the results that hang upon it are universal_ The pettiness and personality of the individual trial disappear when we reflect that our duty to bear testimony runs not to the parties in that present cause, but the community at large and forever.” Id. Like most general maxims, there are exemptions from the duty to testify. Such examples as national security, self-incrimination, and business secrets come to mind. But no such considerations are present here. The EPA does not — indeed, could not — contend that the information sought here by way of testimony is privileged. The curious feature of this case is that the data have already been disclosed to the parties, but, on the present state of the record, cannot be submitted to the jury in the state court except through the process of direct and cross-examination of the EPA employee. The EPA’s actions are paradoxical — it willingly directed an employee to perform air monitoring tests at the site of the pipeline rupture and disclose the results to the litigants, but now blocks presentation of the facts to a court of law. A critical factor in assessing the interests of justice here is that no person can provide the evidence in question other than the employee who performed the air quality measurements. This, therefore, is not a case in which the evidence is cumulative or non-essential, or available from another witness. In these circumstances, where there is but one source of material evidence, the duty to testify becomes even more compelling. The action of the EPA is, in a real sense, suppression of relevant and material evidence. Society has the right to insist that such a drastic step be supported by unassailable grounds — especially when it is a governmental agency that excludes facts from the courts. When an individual citizen has the duty to testify regardless of personal inconvenience or financial loss, surely a governmental agency, in the absence of a legitimate ground for exemption, should not be held to any lesser standard of civic responsibility. The administration of justice is poorly served when the government itself fails to set a proper example for its citizens. Whether an agency’s decision was arbitrary and capricious is judged by the standards set out in Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). There, the Court explained that action is unacceptable under this level of review “if 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.” Id. at 43, 103 S.Ct. at 2866. In denying the plaintiffs’ request, the EPA maintained that the testimony “would add nothing to our public mission and could be seen as taking sides in the litigation.” Letter from Regional Counsel to Attorney for Sun Pipe Line Company (July 31,1987). Moreover, “while the amount of time which this particular exercise might take may be small, the precedent it sets and the future cumulative effect of similar requests could have a significant impact on the Agency’s resources.” Id. The agency further declared that “if an employee is to testify, the testimony must further EPA’s mission.” Id. These “explanations” arguably fail all of the criteria the Supreme Court used to determine whether an agency action is arbitrary and capricious. See Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43, 103 S.Ct. at 2866. It is enough for me, however, that the agency’s reasons completely disregard the obligation of citizens and governmental agencies to present evidence in furtherance of the proper administration of justice. It is curious indeed that the EPA’s concern about establishing a troublesome precedent ignores, as it does, a valued legal principle of several centuries standing. Although it professes a desire to be impartial by suppressing evidence, the EPA is, in reality, taking sides. To withhold testimony that may be helpful to one side is to favor the other, but more importantly for society, is to prejudice proper resolution of the litigation. Accepting the proposition that testifying would inappropriately create the appearance of taking sides nullifies the duty to provide evidence. Conceivably, if providing testimony requires an undue diversion of an agency’s resources, some accommodation might be necessary. But that is not a factor here. The proposal to take a one-time deposition in the EPA office rather than to have the witness present in court will reduce the time required, and will make the evidence usable in more than one case. Obviously, this procedure amounts to a substantial saving of time and shows due consideration for conserving EPA’s finite resources. Any diversion — if indeed it be that — is de minimis here. Thus, the agency’s explanations for withholding evidence may charitably be described as “non-reasons.” As a result, I must conclude that the EPA committed a clear error of judgment that requires us to reverse its decision. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). The action of the EPA was arbitrary and capricious, and I would require it to permit its employee to testify at the deposition as requested. . Justice Frankfurter emphasized this point, writing in concurrence, “[T]he decision and opinion in this case cannot afford a basis for a future suggestion that the Attorney General can forbid every subordinate who is capable of being served by process from producing relevant documents and later contest a requirement upon him to produce on the ground that procedurally he cannot be reached.” Touhy, 340 U.S. at 472, 71 S.Ct. at 421 (Frankfurter, J., concurring). For a discussion of the limited reach of the Touhy decision, see Note, Discovery from the United States in Suits Between Private Litigants—The 1958 Amendment of the Federal Housekeeping Statute, 69 Yale L.J. 452 (1960). . The issue arose peripherally in Boron Oil Co. v. Downie, 873 F.2d 67 (4th Cir.1989), which involved a suit to compel an EPA On-Scene Coordinator to obey a subpoena in a civil action in state court. There, the Court of Appeals, relying on Touhy immunity, held that the district court erred in ordering the agency employee to testify. The Court in Boron Oil referred to the doctrine of sovereign immunity in reaching its decision, but that issue is not before us here.

Kennecott v. Agency

WILKINSON, Circuit Judge: Petitioners challenge the effluent limitations set by the Environmental Protection Agency for the non-ferrous metals manufacturing industry. EPA established the limitations in a rulemaking pursuant to the Clean Water Act of 1977, 33 U.S.C. §§ 1251-1376 (1982). Congress passed the Clean Water Act as an amendment to the Federal Water Pollution Control Act of 1972. The amendment preserves the fundamental purpose of the 1972 Act: “[t]o restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251. In setting effluent limitations for the nonferrous metals industry, EPA acted to implement this congressional mandate to clean up the nation’s navigable waterways. We have reviewed with care petitioners’ challenges to these regulations. We conclude, however, that EPA has properly discharged the task it is required by Congress to perform. I. The instant action reflects the tensions recurrent in every case of environmental regulation. The first group of petitioners here produce substantial amounts of the country's primary copper, lead, and zinc. Others recycle discarded lead batteries for a variety of uses, and still another produces columbium-tantalum, of importance to the aerospace, energy, and transportation industries. The industries contend that the effluent limitations adopted by EPA in the name of the Act are unachievable and will impose widespread costs upon the industries themselves and upon those who depend for their economic livelihood upon non-ferrous metals use. EPA in turn states that petitioners discharge massive amounts of pollutants, over 3 million pounds annually, including “some of the most toxic metals found in industrial waste streams ... lead, cadmium, arsenic, antimony, and zinc.” It contends these pollutants create “a variety of serious adverse health and environmental effects, including cancer, brain damage, and kidney failure.” The effluent limits are, in EPA’s view, based upon achievable technologies and must be met promptly to fulfill the basic purposes of the Clean Water Act. The record in this case is voluminous. The rulemaking itself is highly technical. Petitioners have challenged EPA’s choice of data, its statistical methods, and its economic analysis. It is something of an understatement to say that the expertise of the parties with regard to the non-ferrous metals industry exceeds that of this court. Without suspending our critical faculties, we nonetheless believe that the benefit of the doubt in the battle of the data belongs to the agency in which Congress has reposed responsibility for administration of the Act, see 33 U.S.C. § 1251(d). In addition, this court is bound by the general rules of deference that run throughout administrative law. We may not overturn the agency’s judgment simply because we might have drafted different regulations; remand is limited to those cases in which the agency has acted without reasonable basis. American Meat Inst. v. EPA, 526 F.2d 442, 450 (7th Cir.1975). We begin with the philosophy of the Clean Water Act. The Act requires EPA to set effluent limitations for industries in two stages. As a preliminary matter, Congress asked EPA to set limits based on the “best practicable control technology currently available” (BPT). 33 U.S.C. § 1311(b)(1)(A). EPA defines BPT as “the average of the best existing performance by plants of various sizes, ages and unit processes within each industrial category or subcategory. This average is not based upon a broad range of plants within an industrial category or subcategory, but is based upon performance levels achieved by exemplary plants.” EPA v. Nat’l Crushed Stone Ass’n, 449 U.S. 64, 76 n. 15, 101 S.Ct. 295, 303 n. 15, 66 L.Ed.2d 268 (1980), quoting 39 Fed.Reg. 6580 (1974). In the second stage, Congress directed EPA to set an even more stringent standard, basing effluent limitations on the “best available technology economically achievable” (BAT) for an industrial category. 33 U.S.C. § 1311(b)(2)(A), (C), (D) and (F). The BAT standard reflects the intention of Congress to use the latest scientific research and technology in setting effluent limits, pushing industries toward the goal of zero discharge as quickly as possible. In setting BAT, EPA uses not the average plant, but the optimally operating plant, the pilot plant which acts as a beacon to show what is possible. See A Legislative History of the Water Pollution Control Act Amendments of 1972, 93d Cong., 1st Sess. (Comm. Print 1973), at 798 (hereinafter “Leg.Hist.”). “The distinction between ‘best practicable’ and ‘best available’ is intended to reflect the need to press toward increasingly higher levels of con-trol____” Leg.Hist. at 170. For the purposes of this case, the nonferrous metals industry was generally subject to BAT requirements. Defining Best Available Technology requires substantial technical expertise in evaluating both the efficiency of advanced technologies and the adaptability of those technologies to the production processes of the companies in this case. Our review of the EPA rulemak-ing is appropriately cautious. As this court has previously noted, “The scope of our review is further colored by the policy of the Clean Water Act and the sophisticated data evaluations mandated by that lengthy and complicated statute____ Further, technological and scientific issues, such as those presented in this case, are by their very nature difficult to resolve by traditional principles of judicial decisionmaking.” Reynolds Metals Co. v. EPA, 760 F.2d 549, 558-59 (4th Cir.1985). We proceed, however, on the understanding that Best Available Technology was the means chosen by Congress to achieve “the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985,” 33 U.S.C. § 1251(a)(1), a goal that implies some urgency to the environmental task that Congress set. While Congress was careful to require agency consideration of such factors as the cost to industry of achieving appropriate effluent reductions, it left EPA some latitude in defining BAT, permitting in addition to enumerated criteria, the consideration of “such other factors as the Administrator deems appropriate.” See 33 U.S.C. § 1314(b)(2)(B). To achieve a reasoned result in a dispute over technologies, EPA is bound to consider industry data, but it is not bound to accept it. Any other resolution would undermine the integrity of agency decision-making. For obvious reasons, this court should be loathe to compel an agency to accept data submitted by a regulated industry. That does not imply we are blind to the capacities of agencies to enthrone their own agendas and dismiss contending views. In considering petitioners’ challenges to the non-ferrous metals rulemaking, we ask whether EPA’s technical judgments find support in the record and whether they reflect the rule of reason, not the imposition of fial. The deference to the technical expertise of the Administrator supplements the deference generally required of courts reviewing administrative actions. The Administrative Procedure Act (APA) specifies that a court may overturn an agency action only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C § 706(2)(A). The court best acts as a check on agency decisionmaking by scrutinizing process and by determining whether “the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). Whether the agency has provided notice and an opportunity to comment, and has fairly considered all significant data and comments, is the heart of the judicial inquiry. Chocolate Mfrs. Ass’n v. Block, 755 F.2d 1098 (4th Cir.1985). Once the agency has been found to follow the prescribed course of procedure, its “choice of scientific data and statistical methodology” is entitled to respect. National Ass’n of Metal Finishers v. EPA, 719 F.2d 624, 657 (3rd Cir.1983), rev’d on other grounds sub nom. Chemical Mfrs. Ass’n v. NRDC, — U.S. -, 105 S.Ct. 1102, 84 L.Ed.2d 90 (1985). EPA did not approach casually the task of non-ferrous metals rulemaking. In 1977, the agency began gathering data for the proposed rules which it published on February 17, 1983. 48 Fed.Reg. 7032- 7126. Data was obtained from plant visits, plant samplings, studies of scientific journals, and consultations with industry. Three hundred and nineteen firms, operating 416 facilities, received questionnaires from EPA asking for information on flow rates, production rates, wastewater treatment, and costs. Id. at 7044. Each plant visited by EPA also received an opportunity to comment on the trip report prepared by the agency. Various of the petitioners met with EPA both before and after publication of the proposed rules. The resulting record ran 24,000 pages. EPA solicited public comment on all aspects of the regulations, highlighting points on which the agency wanted additional information. Id. at 7073. The initial comment period lasted eleven weeks. EPA reopened the comment period twice and accepted late-filed comments from one of the petitioners. 48 Fed.Reg. 50906 (Nov. 4, 1983); 48 Fed.Reg. 52604 (Nov. 21, 1983). The agency considered the comments and contacted each petitioner with follow-up inquiries. The comments led EPA to re-examine its selections of model technologies and data bases. EPA likewise considered additional data on the treatment of lead and ammonia, as well as continuing to request and evaluate data from plants that had not previously submitted data. The long process of gathering data and the ongoing dialogue with the industry culminated in the final rule promulgated March 8, 1984. We do not imply, in detailing this lengthy consideration, that a matter of the magnitude and complexity of non-ferrous metals rulemaking deserved anything less. We note only that an appellate court cannot be oblivious to the expenditure of effort that preceded its consideration and that, if the process has been a fair one, a time does come when rulemaking may cease and compliance must commence. II. For the purposes of this appeal, petitioners have been grouped according to industry. The first group of petitioners are Kennecott, American Mining Congress, AMAX, Inc., ASARCO Incorporated, St. Joe Minerals Corporation, and GTE Products Corporation (hereinafter “Kennecott”). Together these companies are responsible for much of the United States production of primary copper, primary lead and primary zinc. Their plants process ore mined from the ground to produce the primary base metals. Kennecott objects to the non-ferrous metals rulemaking, arguing that the agency’s data base was flawed, that petitioners were not given the opportunity to comment on part of the model technology, sulfide precipitation, and that EPA incorrectly calculated flow allowances. After carefully considering petitioners’ numerous and specific objections, we have concluded that EPA acted within the bounds of its discretion when it set effluent limits for the primary metals industry. A. When it set effluent limits for the primary metals industry, EPA used as its model technology a waste treatment process called lime, settle and filtration (L,S & F). Briefly, this treatment technique works in the following way: adding lime to wastewater increases the pH; it makes the wastewater more alkaline. At different pHs, different metals precipitate, that is, emerge from solution and become suspended as solids in the wastewater. Eventually, most solids settle at the bottom of the tank. The precipitate can then be disposed of separately from the wastewater. The wastewater is often subsequently filtered through coal or sand in order to remove additional suspended solids. A number of industries use lime and settle. Beginning in the late 1970’s, EPA collected data from six such industries (aluminum forming, battery manufacturing, secondary lead, coil coating, copper forming, and porcelain enameling). After deleting unreliable data, EPA compiled the Combined Metals Data Base (CMDB). The agency then used the CMDB to calculate achievable effluent limitations for several related industries, including the primary base metals industry. Kennecott objects to EPA’s use of the CMDB. It argues that the CMDB data was limited, that the wastewaters of CMDB plants differed significantly from those of the primary metals plants, and that EPA should not have rejected data submitted by the primary metals industry. Kennecott’s basic objection is that EPA used data from the waste treatment systems of other industries (the CMDB) rather than using data submitted by the primary metals industry. Specifically, Kenneeott makes the following argument: EPA’s data base was limited, containing only 300 raw and treated data points from nineteen plants. EPA did not obtain samples from any given plants over a long term; therefore, the data cannot accurately reflect long-term performance. Kennecott contends that long-term data is necessary because fluctuations in pollutant concentrations occur even in properly operated treatment facilities due to “seasonal changes in temperature and precipitation, production surges or slow downs” and other variables. Because EPA did not collect enough samples, over a long enough period of time, Kennecott contends that the data does not accurately reflect achievable concentrations. Therefore, Kennecott says, petitioners will not be able to meet the effluent limitations. In response, EPA notes that courts customarily defer to an agency’s choice of data, and that in any case, EPA could use the CMDB to predict long-term performance accurately. On the first point, the agency is indisputably correct. This court has consistently given EPA a reasonable leeway in its selection of data and statistical methods. FMC Corp. v. Train, 539 F.2d 973, 986 (4th Cir.1976). “[W]e note that an agency’s data selection and choice of statistical methods are entitled to great deference ... and its conclusions with respect to data and analysis need only fall within a ‘zone of reasonableness’.” Reynolds Metals, 760 F.2d at 559 (citations omitted). The question is thus whether EPA acted reasonably in basing effluent limitations for the primary base metals industry on the CMDB. EPA contends that it does not necessarily need long-term data to predict long-term performance. It notes that the data base at issue here has been used in regulations in a number of other metals industries. By using well-established statistical methods, EPA could factor in the variability one would expect in an optimally operating plant. It is true that prediction of long-term performance would not account for fluctuations resulting from operational failures. However, the agency argues that plants with operating problems do not represent the Act’s goal of Best Available Technology. FMC Corp. v. Train, 539 F.2d at 986. (“The purpose of these variability factors is to account for the routine fluctuations that occur in plant operation, not to allow for poor performances.”) Moreover, the agency contends that the addition of second-step sulfide precipitation to the model technology further reduces the variability of lime and settle treatment. See subsection IIB, infra. Courts have traditionally respected the agency’s selection of a data base in the face of challenges that the data failed to account for variable pollution loads, Ass’n of Pac. Fisheries v. EPA, 615 F.2d 794, 812-13 (9th Cir.1980); American Petroleum Inst. v. EPA, 540 F.2d 1023, 1035-36 (10th Cir.1976). The number of data points here is not insignificant, and there must exist some reasonable termination point in the process of data collection. Kennecott responds that even if EPA collected a sufficient number of data points, the CMDB remains flawed. It argues that the CMDB wastewater is so different from the wastewater in the primary metals industries that EPA cannot use the CMDB to set effluent limits that would apply to Kennecott. Without quantifying its claim, KenneVtt says that the base metals industry has “huge amounts of wastewater,” “tremendously high concentrations of metals,” and a “very large variety of different metals” in the wastewater. EPA’s similarly unquantified response is that the wastewaters in the CMDB industries and those of the primary base metals industry are indeed comparable. The agency agrees that the differences in concentration of metals may be statistically significant. However, there is evidence to show that the treatability of wastewater depends on the solubility of the pollutants, not on their concentrations. A difference in concentration of influents would thus not affect the concentration of effluents. See Proposed Rules, 48 Fed.Reg. 7050 (Feb. 17, 1983). This judgment constitutes a reasonable basis for EPA’s belief that the waste-waters are comparable. We cannot say that EPA has acted arbitrarily or capriciously in using the CMDB to set effluent limitations for the primary metals industries. Finally, we do not believe that EPA acted arbitrarily in rejecting the data submitted by the industry. EPA examined the data from petitioners’ plants and concluded that six of the plants were not operating properly, and the seventh was unrepresentative. EPA determined that three plants were improperly operating one or more steps of the lime and settle process; they had ineffective pH adjustment, inadequate waste-water settling time, or lacked wastewater equalization. Plants use equalization to send more uniform loads of pollutants to the treatment system, ensuring that the system is not overloaded. In three other plants, patterns of extreme variability in treated effluents suggested to EPA that the plants were not equalizing their waste-waters properly. Finally, EPA considered that the seventh plant was unrepresentative because nearly all of its wastewater came from sources not related to the manufacturing processes covered by these regulations. We cannot say, therefore, that EPA abused its discretion by rejecting the industry data. B. EPA had originally proposed lime, settle and filtration as the BAT for treating wastewater in the primary base metals industry. Commenters objected that they would not be able to meet the proposed effluent limitations. In the Final Rules, EPA responded that any plant unable to meet the effluent limitations by using the model lime, settle and filtration technology could add an additional step: sulfide precipitation. While the APA requires the opportunity for public participation in rulemak-ing, “[t]here is no question that an agency may promulgate a final rule that differs in some particulars from its proposal.” Chocolate Manufacturers, 755 F.2d at 1103-04. Kennecott objects, however, to the inclusion of sulfide precipitation on the grounds that it was not given notice or the opportunity to comment. Had it been given the opportunity, Kennecott says, it would have filed comments detailing the reasons that sulfide precipitation would not reduce effluent concentrations to the required levels. Sulfide precipitation works on the same principle as lime and settle. When sulfide is added to wastewater, certain pollutants precipitate out and become suspended as solids in the wastewater. The wastewater is held in tanks until most of the precipitated metals have settled to the bottom. Filtration will remove additional suspended solids. When sulfide precipitation precedes L,S & F, it is called “sulfide pretreatment.” When sulfide precipitation follows L,S & F, it is called “sulfide polishing.” Kennecott charges that EPA gave no indication that it was considering using lime, settle and filter plus sulfide precipitation as the model technology. An agency is, of course, required to give notice “sufficiently descriptive to provide interested parties with a fair opportunity to comment and to participate in the rulemaking.” Chocolate Manufacturers, 755 F.2d at 1104. EPA listed six control and treatment options in the proposed rules; sulfide precipitation was not among them. We note, however, that the agency is not required to specify every precise proposal that it may eventually adopt as a rule, Consolidation Coal Co. v. Costle, 604 F.2d 239, 248 (4th Cir.1979). EPA actually did discuss sulfide precipitation in the Development Document, which accompanied the Proposed Rules, although Kennecott contends that these brief references were insufficient to give notice, buried as they were amidst a discussion of two dozen other treatment technologies. As a result, Kennecott believes it was deprived of notice and the opportunity to comment on sulfide precipitation. EPA would characterize the sequence of events here differently: EPA proposed limits, the primary metals industry commented that it would not be able to meet those limits, and EPA added another treatment step so that plants could more readily comply with the established effluent guidelines. EPA styles its introduction of sulfide precipitation a “natural and logical outgrowth” of the commenting procedure. Cf. BASF Wyandotte Corp. v. Costle, 598 F.2d 637, 642 (1st Cir.1979), cert. denied sub norm. Eli Lilly & Co. v. Costle, 444 U.S. 1096, 100 S.Ct. 1063, 62 L.Ed.2d 784 (1980). This description of events may, of course, mask a displeasing side of agency behavior. It is not acceptable for an agency to set unachievable limits, and then, when the industry objects, to pull a curative technology out of its hal. This sort of conduct would frustrate the purpose of the procedural safeguards in the administrative process, and replace participatory rulemaking with rulemaking by ambush. The question of adequate notice requires “careful consideration on a case-by-case basis.” BASF1 Wyandotte, 598 F.2d at 642. Here, there is no indication that EPA acted in bad faith and there is ample indication that the base metals industry should reasonably have known that EPA was considering sulfide precipitation. In the preamble to the proposed rules, EPA specifically asked for comments on alternative treatment technologies. In the associated Development Document, EPA included both lime and settle and sulfide precipitation in its discussion of effective chemical precipitation methods. EPA also discussed the advantages and limitations of sulfide precipitation in some detail. Finally, the Development Document contained several charts on sulfide precipitation, including data on the performance of sulfide precipitation-sedimentation systems and a comparison of the solubilities of hydroxides and sulfides of selected metals. Just as an agency may not ambush an industry by withholding a proposed technology until after the period for comment, an industry may not remain silent during that period only to complain upon appeal that it was deprived of an opportunity to comment on what it might reasonably have been apprised. This circuit has also noted that while an agency may not bootstrap new technologies from the comments, it may make “substantial changes” in its original proposed rule if the changes are a “logical outgrowth” of the original proposal and the notice and comments upon it. American Paper Inst. v. EPA, 660 F.2d 954, 959 n. 13 (4th Cir.1981). Accordingly, we hold that EPA did not violate the requirements of the Administrative Procedure Act when, in an attempt to respond to industry comments and complaints, it added sulfide precipitation as a supplement to the Best Available Technology on which its effluent limitations were grounded. There remains the question of whether EPA acted arbitrarily in selecting sulfide precipitation as part of the Best Available Technology. Kennecott argues that sulfide precipitation will not reduce effluent concentrations to the required levels. Specifically, Kennecott charges that data from the model plants which currently use sulfide precipitation (Ashio, Japan; Boliden, Sweden; AMAX Ft. Madison) cannot be used to predict achievable concentrations at Kenne-cott’s plants, because conditions at the two groups of plants are so different. Kenne-cott notes that the plant in Ashio, Japan, for example, uses sulfide precipitation to produce arsenic trioxide as an end-product, rather than to treat wastewater. EPA replies that the ultimate disposition of the solid precipitate is irrelevant, as long as the concentration levels of pollutants in the wastewater are acceptable. The model technology may exist at a plant not within the primary base metals industry. Congress contemplated that EPA might use technology from other industries to establish the Best Available Technology. Reynolds Metals, 760 F.2d at 562. Progress would be slowed if EPA were invariably limited to treatment schemes already in force at the plants which are the subject of the rulemaking. Congress envisioned the scanning of broader horizons and asked EPA to survey related industries and current research to find technologies which might be used to decrease the discharge of pollutants. Leg. Hist, at 170. To determine that technology from one industry can be applied to another, the agency must: (1) show that the transfer technology is available outside the industry; (2) determine that the technology is transferable to the industry; (3) make a reasonable prediction that the technology if used in the industry will be capable of removing the increment required by the effluent standards. Tanners’ Council of America, Inc. v. Train, 540 F.2d 1188, 1192 (4th Cir.1976) (using the standard set out by the Eighth Circuit in CPC Int’l Inc. v. Train, 515 F.2d 1032, 1048 (8th Cir.1975)). EPA has demonstrated that sulfide precipitation — a process it terms “familiar” and “well established” — is available outside the primary base metals industry and that the technology is transferable to that industry. The agency notes that “the low solubility of metal sulfides” has made sulfide precipitation a more effective treatment than the conventional lime and settle process. We do not think it disqualifying that the Ashio plant, for example, uses sulfide precipitation to produce an end-product rather than to clean its wastewa-ter, so long as the process adequately reduces pollutant concentrations in wastewa-ter. Again, granting the agency a proper measure of deference in technical judgments, it was not arbitrary for EPA to decide that sulfide precipitation would remove pollutants to the degree required by the effluent limitations. Kennecott discusses two other differences between the sulfide precipitation process at the model plants and the process at the primary base metals plants. Kennecott points out that the Ashio plant treats wastewater in batches, while the primary base metals plants treat wastewater continuously. EPA answers that the choice of the batch or continuous processes affects only cost, not effectiveness, and that study demonstrates the installation and operation of sulfide precipitation is economically achievable. Kennecott also notes that all three model plants use sulfide pretreatment, rather than sulfide polishing. Again, EPA believes that the difference is irrelevant; whether sulfide precipitation is the step before or after L,S & F will not affect the achievability of the desired effluent limitations. The critical matter, in the agency’s judgment, is the application of the proper amount of precipitant and the maintenance of proper levels of pH, factors entirely independent of the timing of wastewater treatment. We hold that EPA had a reasonable basis for deciding that the sulfide precipitation technology is transferable. We are unable to conclude the agency acted arbitrarily or capriciously in selecting sulfide precipitation as part of the Best Available Technology for the primary base metals industry. C. EPA expresses its effluent limitations as “mass limits.” EPA derives the mass limit by multiplying the maximum concentration level of a pollutant times water flow. The agency sets flow allowances as well as concentration limits in order to prevent plants from avoiding “the regulatory impact by diluting their effluent.” Weyer-haeuser Co. v. Costle, 590 F.2d 1011, 1059 (D.C.Cir.1978). In setting flow allowances, the agency uses a “building block approach.” That is, EPA sets a flow allowance for each individual process step; the state or regional permit writer then calculates the total flow allowance for each individual plant by summing the allowances for each process step used at that plant. Kennecott contends that EPA improperly denied a flow allowance for a step in the process of manufacturing primary lead called blast furnace slag granulation. In the final rules, the BAT standard for blast furnace slag granulation is zero discharge. The New Source Performance Standard (NSPS), which governs new plants, is also zero discharge. Because Congress thought that new plants have the opportunity to install the best and most efficient production processes, NSPS is normally at least as stringent as, if not more stringent than, BAT. American Iron and Steel Inst. v. EPA, 526 F.2d 1027, 1058-59 (3d Cir.1975). Obviously, nothing can be more stringent than zero discharge. The blast furnace slag granulation step can be either a wet or a dry process. Ken-necott contends that dry slag is not an option because it produces uncontrollable dust. Therefore, plants use wet slag, which produces wastewater. Kennecott requests a flow allowance for this wastewa-ter. EPA responds that zero discharge for blast furnace slag granulation is appropriate because three of four existing plants recycle 100 percent of their wastewater and thus achieve zero discharge for reasons which are not site-specific. The agency did not abuse its discretion in concluding that no flow allowance need be set for the blast furnace slag granulation process step. With regard to the NSPS, Kennecott lodges one additional objection. It says that the NSPS is based on pyrometallurgical plants, but that new primary lead smelters are likely to be hydrometallurgical. Kennecott admits that no hydrometallurgi-eal plant is in the process of being built or even contemplated. When such a plant is built, it can be designed according to EPA specifications. If zero discharge is indeed impossible for a hydrometallurgical plant, EPA has said that at that time, it will receive a petition for a new rulemaking. 48 Fed.Reg. 8764 (Mar. 8, 1984). D. On occasion, EPA sets catastrophic storm allowances. These allowances permit a plant to discharge additional waste-water under emergency circumstances. Some plants hold liquid waste in “surface impoundments,” which are simply natural or manmade depressions. A catastrophic storm allowance permits a plant to discharge untreated wastewater when a storm of a certain size strikes and causes the surface impoundment to overflow. EPA has set no catastrophic storm allowances for primary lead and zinc plants. Copper smelters are permitted to discharge untreated wastewater if a “twenty-five year storm” occurs. A twenty-five year storm is a storm of such magnitude that it is likely to occur only once per quarter century. Kennecott can no longer challenge the catastrophic storm allowances for zinc and copper. EPA denied the catastrophic storm allowance for zinc in a 1975 rulemak-ing; the BAT and BPT allowances for copper were set in 1975 and 1980. See 40 Fed.Reg. 8528 (Feb. 27, 1975); 40 Fed.Reg. 8524 (Feb. 27, 1975); 45 Fed.Reg. 44929 (July 2, 1980). Petitioners failed to raise their objections within the ninety days specified by the Clean Water Act. 33 U.S.C. § 1369(b)(1). Kennecott is free to challenge the denial of a storm allowance for the primary lead industry, but we do not find its arguments persuasive. EPA did not set a catastrophic storm allowance for primary lead plants because surface impoundments are not part of the model technology. 48 Fed.Reg. 7048-49 (Feb. 17, 1983). EPA made a conscious decision to discourage impound-ments because of associated problems: the risk of groundwater contamination and the danger that heavy pollutants will be discharged all at once. Given EPA’s reservations about impoundments and the fact that impoundments are not part of the model technology, EPA did not act arbitrarily in refusing to grant an allowance for catastrophic storms. EPA also did not set allowances for non-scope flows, that is, wastewater which is not generated by the manufacturing process but comes from other sources like employee showers or handwashing. The preamble to the Final Rules asks permit writers to consider non-scope flows when they write permits for individual plants. 47 Fed.Reg. 8778 (March 8, 1984). Kenne-cott is concerned that because EPA does not specifically authorize allowances for non-scope flows in the body of the regulations, permit writers will erroneously deny allowances. However, EPA did not set allowances for non-scope flows because these flows are so idiosyncratic. We do not believe that EPA was required to list site-specific sources as a separate subpart of the final regulations. Individual plants will, of course, be able to challenge the flow allowances set by permit writers. E. Finally, Kennecott says that it was denied notice and the opportunity to comment on the Pretreatment Standards for Existing Sources (PSES). BAT applies to plants which are “direct dischargers,” that is, plants whose wastewater goes directly into the waterways. Indirect dischargers are plants which discharge waste which is treated by a sewage plant before it reaches public waterways. Indirect dischargers are subject to PSES, rather than to BAT. Because many pollutants either pass through or interfere with the operation of sewage treatment plants, EPA frequently sets PSES equal to BAT. EPA failed to propose PSES for the primary zinc and lead subcategories because it did not realize there were any indirect dischargers. When EPA learned from the comments that there were indirect dischar-gers, EPA set PSES equal to BAT. Because EPA had previously disclosed its methodology for establishing BAT, and because it was foreseeable that PSES would be the same as BAT, we cannot say that EPA failed to provide adequate notice. III. The next petitioners represent the secondary lead industry, which recycles lead, principally from discarded batteries, in four steps. First the batteries are cracked, then the various parts are separated or “classified” by immersing the battery parts in water. In this step, for example, plastic and rubber are separated from the lead plate. In the third process step, the lead which has been removed from the batteries is smelted. Plants use wet air pollution control systems (“scrubbers”) to control the emission from smelting. Finally, the lead is refined and east. At this stage, plants often use another wet air pollution system, “kettle scrubbers.” Each of these process steps results in a waste-water stream contaminated by lead and other pollutants. The Secondary Lead Smelters Association (SLSA) represents eighty-five percent of U.S. secondary lead smelting capacity. SLSA has challenged the non-ferrous metals rulemaking, arguing that filtration is not economically achievable, that EPA’s data base was flawed, and that EPA incorrectly set flow allowances. We have considered its objections and conclude that SLSA has failed to show that EPA acted arbitrarily or capriciously in setting effluent limits for the secondary lead industry. A. EPA used multimedia filtration as the last step in the combination of techniques which represent BAT for the secondary lead industry. SLSA contends that multimedia filtration is not economically achievable, and that EPA has already considered and rejected filtration in rulemak-ings for five other industries. According to SLSA, EPA significantly underestimated the total cost of filtration by failing to include the costs of larger treatment facilities and remodeling. In its Economic Development Document, EPA considered the possible adverse economic impacts of filtration, including possible plant closures, loss of business to foreign competition, increased cost of production, decreased return on investment, and rising unemployment. This court will not undertake its own economic study, but must uphold the regulations if EPA has established in the record a reasonable basis for its decision. Courts generally allow EPA some leeway in its analysis of costs. Kennecott Copper Corp. v. EPA, 612 F.2d 1232, 1238 (10th Cir.1979); BASF Wyan-dotte, 598 F.2d at 656. Here we must find that EPA has built a record sufficient to support its decision that multimedia filtration is economically achievable. It is true that EPA has not required filtration for other industries. It is well settled, however, that such inter-industry comparisons are not determinative. American Meat Inst., 526 F.2d at 466; Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 389 (D.C.Cir.1973). The question is whether filtration should be required for the secondary lead industry, not whether it should be required for some other industry. As the District of Columbia Circuit has noted: “It would be unmanageable if, in reviewing the cement standards, the court should have to consider whether or not there was a mistake in the incinerator standard, with all the differences in parties, practice, industry procedures, and record for decision.” Id. at 389. This court does not have before it the records of the rule-makings for the five other industries; we are, therefore, reluctant to launch comparisons of model technologies established for one industry with those established for another. The cost of installing and operating a model technology is not, however, a matter that Congress has permitted the agency to ignore. The statute requires EPA to take into account the cost of achieving effluent reduction. 33 U.S.C. § 1314(b)(2)(B). Furthermore, the agency has the duty to explain its cost analysis fully. Pacific Fisheries, 615 F.2d at 820. Here, EPA did execute a careful analysis of compliance costs and their economic impact. The agency used data from the secondary lead industry to estimate the production and capacity of each plant, and then computed probable revenues from those production and capacity figures. Taking into account wastewater flows and treatment technology already in place, the agency calculated compliance costs for each plant in the secondary lead industry. EPA next compared compliance costs to revenues for each plant. If the compliance costs exceeded one percent of the revenues, EPA went on to determine whether the plant could remain profitable in the long run, and whether it could absorb the necessary costs during the first few years of compliance. EPA also calculated changes in cost of production, increase in price, and changes in return on investment, and compared compliance investment costs to average capital expenditures. On completion of its economic analysis, EPA concluded that no plants would be forced to close because of increased costs, and that the regulations would not have a significant adverse impact on employment, foreign trade or the secondary lead smelting industry. Recognizing the importance of this issue to those plants and businesses affected, we nonetheless conclude that EPA acted in accordance with its statutory mandate in assessing the costs of BAT compliance. B. SLSA’s next request is that the effluent limitations for lead be remanded for consideration of additional data. Initially, EPA based the effluent limitations for lead on three data points from one battery manufacturing plant, Johnson Controls. EPA then added to its data base 201 points from an integrated battery manufacturing/secondary smelting facility, General Battery. SLSA argues that EPA was wrong to use this data, while rejecting data submitted by the industry. We find that EPA did not act arbitrarily with regard to its choice of data. Specifically, SLSA claims that the waste-waters from the plants EPA used differ significantly from industry wastewater. SLSA says that secondary lead wastewater has higher concentrations of lead. Secondary lead raw wastewater contains 11-92 milligrams per liter of lead. The untreated wastewater at Johnson Controls contained lead in concentrations of 1.0-1.45 mg/1. However, lead concentrations at General Battery ranged from 21-41 mg/1 in the EPA sampling and 0.96-801 mg/1 in the plant’s self-sampling. We conclude that EPA was not unreasonable in basing its effluent limits on the General Battery data. Had EPA set limits using only the Johnson Controls data, we might well decide this question differently. EPA also acted within its discretion when it rejected data submitted by the secondary lead industry. EPA said that the data submitted by petitioners did not contain paired influent/effluent points or effluent pH ranges. As a result, EPA felt it was unable to determine whether petitioners’ data represented exemplary operation. We cannot find that the agency’s rejection of the secondary lead industry data on a matter committed to its expertise is unfounded or arbitrary. C. The question of whether the secondary lead industry can achieve cadmium limitations set for other industries is not ripe for review. EPA has not set cadmium limitations for the secondary lead industry. When EPA decides to forego general regulations in favor of having limits set by individual permit writers, the agency has made a considered decision to set particular limitations on a plant-by-plant basis. For this court to deal with the issue of cadmium limitations on appeal as if it were a general rulemaking matter would be to flout the agency’s approach to the problem. The requirement of ripeness is designed “to protect agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). In determining whether a challenge to an administrative regulation is ripe for review, the court must ask first whether the issue is appropriate for judicial resolution, and second whether the parties will suffer hardship if judicial review is denied. Id. at 149, 87 S.Ct. at 1515. Here the matter we are asked to review is doubly speculative. We do not know whether the individual permit writers will choose to regulate cadmium at all. Further, it is unclear that a permit writer who does choose to set limits for cadmium will do so by applying standards from other industries to particular secondary lead plants. Cf. NAMF, 719 F.2d at 654-55. The secondary lead industry will likewise suffer no real hardship as a result of this court’s denial of judicial review at this juncture. If a permit writer does set cadmium limits for a secondary lead plant, the plant is free to seek review of the permit. See Diamond Shamrock Corp. v. Costle, 580 F.2d 670 (D.C.Cir.1978). Given the double contingency, and the fact that secondary lead smelting plants enjoy an avenue of relief in the event of future injury, we decline to address this matter in the present litigation. D. SLSA’s next contention is that EPA erred when it set or failed to set flow allowances for the various steps in the secondary lead smelting process. As noted above, secondary lead smelters recycle batteries to produce lead in four steps: battery cracking, battery classification, smelting, and refining. During smelting, plants use furnace wet air pollution control. The refining process produces particulate matter, which is controlled by a kettle wet air pollution control system. Each process step produces a wastestream. Some plants recycle most, if not all, of the wastewater produced by the battery classification process and the two air pollution control processes. EPA did not set a flow allowance for the battery classification process step. SLSA challenges this lack of flow allowance, and, in addition, challenges as too low the flow allowances for the battery cracking process step, furnace wet air pollution control, and kettle wet air pollution control. We find that EPA’s decisions as to flow allowances were not arbitrary or capricious, and uphold the regulations. EPA did not set a flow allowance for battery case classification because it had obtained data from plants which reuse 100 percent of the wastewater from this process step. SLSA contends that recycling wastewater “dirties” equipment, necessitating continuous maintenance. Congress, however, required EPA to search out the Best Achievable Technology, and to strive for zero discharge. Two secondary lead plants recycle 100 percent of their battery classification wastewater by running it through lime, settle and filtration. Since all secondary lead plants have a lime, settle and filtration system, EPA believes all secondary lead plants can achieve 100 percent recycle and zero discharge for battery classification. EPA thus did not act arbitrarily in denying a flow allowance for the battery classification process step. SLSA also contends that the flow allowance for the battery cracking process step is too low. SLSA says that EPA wrongly excluded data from two plants, and based its data on plants with unrepresentatively low flows. According to EPA, twenty of the thirty-five plants with this wastestream currently meet the flow allowance limit set for battery cracking. EPA contends that it rejected data from two plants with excessively high flows, because it could find no technical justification for the high flows. The agency can reject data it reasonably believes to be unreliable. American Meat Inst., 526 F.2d at 457. While it is not free to reject data arbitrarily, it may do so if it reasonably concludes that the plant is not operating efficiently. The standard set by Congress is high; there is no room for data from plants which are not functioning optimally. EPA also set comparatively low flow allowances for both kettle and furnace wet air pollution control systems. SLSA again argues that both flow allowances are too low, and therefore not achievable by secondary lead smelters. Specifically, SLSA says that, in setting flow allowances for kettle scrubbers, EPA erroneously excluded data from two plants. EPA says that plants which use kettle scrubbers recycle the water used and then periodically discharge the water in order to flush out the system. EPA received data from three plants and used the lowest rate to set the flow allowance, after deciding that there was no technical justification for the two higher rates. We cannot say that EPA did not duly consider all the data, or that the agency acted unreasonably in setting the flow allowance on the basis of the best performance. SLSA next objects that the furnace air pollution control flow allowance is too low. EPA received data from eight plants, but based the flow allowance on data from only three plants. Again, EPA’s action was consistent with Congress’ instruction to base effluent limitations on the Best Available Technology. Two plants recycle all of their furnace air pollution control wastewa-ter. EPA based its flow allowance on a ninety percent recycle rate. We cannot say that EPA acted unreasonably in setting the flow allowance for furnace air pollution control systems. In sum, EPA did not abuse its discretion in either setting or failing to set flow allowances for any of the steps in the secondary lead smelting process. IV. The last petitioner is Mallinckrodt, which produces columbium and tantalum salts. Columbium and tantalum are used in the aerospace, energy, and transportation industries. There are five companies in the United States which process columbium and tantalum. Three integrated plants process ore to make salts, and then process the salts to produce metal. Mallinckrodt processes raw material to make columbium and tantalum salts, which are then used by the fifth firm to make metal. Mallinckrodt complains that EPA failed to provide adequate notice and opportunity to comment on the ammonia standards and on flow allowances. We find, however, that EPA did meet the notice and comment requirements. In addition, Mallinckrodt charges that EPA was arbitrary and capricious in promulgating rules on the basis of inadequate data. We find that EPA was neither arbitrary nor capricious, and accordingly deny Mallinckrodt’s petition. A. Mallinckrodt uses a process known as “steam-stripping” to reduce the levels of ammonia in wastewater. EPA set effluent limitations for ammonia, using steam-stripping as the model technology. EPA based the ammonia concentration standard on data from a single plant in the iron and steel industry. In its comments, Mallinck-rodt objected that the data was insufficient. In connection with a related rule-making, EPA had obtained data from a zirconium-hafnium plant that also used steam stripping. EPA examined the zirconium-hafnium data to see what levels of ammonia concentration were achievable. Mallinckrodt argues that EPA’s failure to publish the data from the zirconium-hafnium plant deprived Mallinckrodt of the opportunity to comment. Had it been given the opportunity, Mallinckrodt says, it would have pointed out that Mallinckrodt’s wastewater has significantly greater quantities of fluorides and sulfates than does the zirconium-hafnium wastewater. Mal-linckrodt says that the fluorides and sulfates interfere with the ability of steam stripping to release ammonia, hence it will not be able to achieve the effluent limitations based on the zirconium-hafnium data. According to EPA, however, the iron and steel data continued to be the basis for the final regulations; the zirconium-hafnium data was used'only to confirm the limits. The requirement of notice and an opportunity to comment is designed to ensure that interested persons are apprised of the “subjects and issues” before the agency. American Iron and Steel Inst. v. EPA, 568 F.2d 284, 293 (3rd Cir.1977). This requirement should not, however, be maneuvered to block enforcement of a regulation indefinitely. The case law establishes that an agency may promulgate a rule which differs from the proposed rule, without re-opening the comment period. “The requirement of submission of a proposed rule for comment does not automatically generate a new opportunity for comment merely because the rule promulgated by the agency differs from the rule it proposed, partly at least in response to submissions.” International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 632 (D.C.Cir.1973). Were the law otherwise, rulemakings might never be terminated. The reviewing court must in turn strike a balance between ensuring public participation and not obstructing the passage of valid regulations. “The essential inquiry is whether the commenters have had a fair opportunity to present their views on the contents of the final plan. We must be satisfied, in other words, that given a new opportunity to comment, commenters would not have their first occasion to offer new and different criticisms which the Agency might find convincing.” BASF Wyandotte, 598 F.2d at 642 (footnote omitted). Had it been given the opportunity to comment on the zirconium-hafnium data, Mallinckrodt would have discussed fluoride and sulfate interference. However, as Mallinckrodt itself concedes, other commenters discussed the possibility of fluoride/sulfate interference when they commented on the iron and steel data. Mallinckrodt commented on the iron and steel data; it could have raised the issue of fluoride/sulfate interference at that point. We cannot conclude that by its use of the zirconium-hafnium data EPA deprived Mallinckrodt of meaningful notice and opportunity to comment on the effluent limits for ammonia. B. Mallinckrodt challenges the flow allowances for the columbium-tantalum industry, on the grounds that it did not have notice or an opportunity to comment on the normalizing parameter, and that EPA did not use data from one of Mallinckrodt’s plants. Neither of Mallinckrodt’s contentions with respect to flow allowance merits remanding the regulations. In the proposed rules, EPA had calculated the permissible flows according to the amount of end-product. That is, a plant was entitled to discharge more wastewater if it produced more salts or metal. In the final rules, EPA made flow allowances proportional to the amount of raw material used. Mal-linckrodt complains that it was never given an opportunity to comment on EPA’s decision to normalize flow on the basis of raw concentrate rather than end-product. Mal-linckrodt says that the final rules would permit it to discharge only 218 pounds of ammonia per year, as opposed to the 1,219 pounds per year permitted by the proposed rules. EPA replies that Mallinckrodt’s flow allowance dropped not because of the change in normalizing parameters but because EPA obtained more flow data and realized that the original flow allowance was too high. EPA changed the normalizing parameter in response to other comments. However, Mallinckrodt’s flow allowance would have dropped dramatically even if EPA had not changed the normalizing parameter. Therefore, the pertinent question is whether EPA acted arbitrarily in excluding Mallinckrodt’s data when it calculated the flow allowance. To set the flow for concentrate digestion wet air pollution control, EPA obtained data from three plants, numbered 507, 509 (Mallinckrodt’s plant) and 519. Plant 519 used the same air pollution control for two separate processes; EPA concluded that it could not base a flow allowance for one process on the data from plant 519. Plant 509 discharged fifteen times more waste-water than plant 507. EPA says that the two plants were similar in many respects and that although Mallinckrodt had many opportunities to do so, it never pointed out any process differences during the rule-making. EPA decided that plant 509’s flow rate was excessive, and based the standard on plant 507. Here, EPA was setting the standard according to BPT (best practicable technology), rather than BAT. BPT is normally the average of the best performing plants. However, since EPA had data from only three plants, and one set of data was clearly unusable, it was not unreasonable for EPA to set limits according to the better remaining performer. See National Crushed Stone, 449 U.S. at 76 n. 15, 101 S.Ct. at 303 n. 15. V. The objections made to the EPA regulations by petitioners have been numerous. We have considered those we believe to be the most substantial, and we find them insufficient to establish a case of arbitrary behavior on the part of the agency. The technical intricacy of the judgments at issue reminds us again of the constraints and limitations of judicial review and of the heavy obligations imposed upon agency specialists to bring to their tasks a sense of fairness as well as a briefcase of expertise. In this case the Environmental Protection Agency conducted its rulemaking in conformity with the Administrative Procedure Act and the Clean Water Act. To the best of this court’s belief, the regulations here were properly promulgated and will assist the protection of human health, nutriment, and recreation which the Congress envisioned as the legacy of cleaner waterways. The petitions are accordingly DENIED. . The challenged regulations are codified at 40 C.F.R. § 421 (1985). . The fact that the agency may undertake such comparisons in establishing BAT for a particular industry poses no anomaly. As we have noted, such comparisons are consistent with the agency's statutory mandate and, in any event, the agency must establish transferability. See section IIB, supra. Moreover, we discern a difference in terms of the statutory purpose between an industry pleading comparisons as a basis for the most lenient effluent guidelines and the agency utilizing comparisons in assessing the Best Available Technology. . The agency's euphemistic assertion, without accompanying figures, that Johnson Controls' wastewater "contained lead at concentrations comparable to the lower end of the range of secondary lead plants” is not appreciated. Such representations serve to obscure, not to clarify.

Ford Motor Credit Co. v. S. E. Barnhart & Sons, Inc.

OPINION OF THE COURT WEIS, Circuit Judge. Devastation of the Pennsylvania landscape caused by irresponsible strip mining prompted the legislature to enact a comprehensive statute governing the conduct of mine operators and providing for administrative enforcement. In response to a legislative delegation of authority, the state Department of Environmental Resources adopted a regulation prohibiting removal of backfilling equipment from a mining site until reclamation is completed. The district court held that the regulation barred plaintiff finance company from repossessing a loading machine from a stripping site. Because we conclude that the regulation was not intended to apply to financing agencies and that, if otherwise interpreted, it would exceed the agency’s authority, we vacate and remand. Plaintiff Ford Motor Credit Company brought suit against the defendants Harrs to replevy a wheel loader that had been used in stripping coal from their farm. Plaintiff later amended its complaint to include a claim against defendant S. E. Barn-hart & Sons, Inc., the owner of the loader. The district court initially allowed plaintiff to take possession of the equipment but later reversed its order, directed plaintiff to return the loader to the farm, and dismissed the action against the Harrs. Finding that Ford’s only remaining claim was for money damages against Barnhart, the district court certified the case under 28 U.S.C. § 1292(b) (1976). A panel of this court allowed the appeal. Barnhart had purchased the wheel loader from Highway Equipment Company on an installment sale contract in April 1978. The agreement was assigned to the Ford Motor Credit Company in November 1978, and a notation to that effect was entered in the filing offices where financing statements had previously been lodged by Highway Equipment Company. Barnhart ultimately leased the loader to Summit Fuel Company, who used it to strip coal from the Harr farm pursuant to a written agreement. In return, Summit was to pay the Harrs a stipulated royalty, to abide by state and federal regulations on backfilling, and, in addition, to have “at least one piece of mining equipment performing backfilling operations simultaneously with any mining and stripping operations . . . . ” After failing to pay royalties or backfill as agreed, Summit vacated the premises, leaving the loader behind. In the meantime, Barnhart defaulted on its payments to Ford Motor Credit Company. When Ford sought to repossess the loader, the Harrs refused permission and this replevin action followed. In their answer to Ford’s complaint, the Harrs asserted a possessory lien on the equipment. The district court rejected that contention in an order dated October 30, 1980, but scheduled a hearing on the applicability of regulations issued by the Pennsylvania Department of Environmental Resources, particularly the one providing that backfilling equipment must remain on site until restoration is completed. After the hearing, the court found that the required reclamation had not been accomplished and that the loader was a piece of backfilling equipment within the meaning of the regulation. It then concluded that Ford must return the loader to the farm, where it was to remain until the backfilling was completed. The Harrs, however, were not permitted to operate or sell the equipment. After argument, the court denied plaintiff’s motion for reconsideration. On appeal, plaintiff contends primarily that the regulation is applicable only to mining operators, not finance companies. The Harrs assert that they have a possessory lien on the loader by virtue of both the regulation and their status as landlords. I. We first discuss the question of jurisdiction. When the district court directed plaintiff to return the loader to the farm, the order recited that the “only outstanding litigation remaining in the case is the claim of the plaintiff against Barnhart for money damages . . . . ” This put the case clearly within the ambit of Fed.R.Civ.P. 54(b): “When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” Here, the district court did make a final disposition as to one of the multiple parties as well as to one of the multiple claims. Nevertheless, the order directing plaintiff to return the loader to the Harrs’ property stated that there was a controlling question of law warranting an immediate appeal. This order was issued pursuant to 28 U.S.C. § 1292(b). Rule 54(b) and 28 U.S.C. § 1292(b) should be carefully distinguished in application because they serve different interests. Section 1292(b) permits appeals of interlocutory orders upon certification by the district judge and permission by the court of appeals. It is designed to allow for early appeal of a legal ruling when resolution of the issue may provide more efficient disposition of the litigation. The order need not be a final one nor need it decide all of the issues with respect to one party or one or more claims. By contrast, Rule 54(b) requires that the order be final in the sense that it disposes of one or more but fewer than all claims against a party or, in a multiple party situation, a claim against one or more but fewer than all parties. 9 Moore’s Federal Practice § 110.09 (2d ed. 1980). The rule permits the district judge to direct entry of judgment if there is no just reason for delay, thus making the decision appealable. No controlling legal principle need be at issue nor need the court of appeals grant permission. The order, however, must be a final one insofar as it decides a specific claim. At times, the policies behind Rule 54(b) and § 1292(b) may overlap when, as here, a final decision as to one party also involves a controlling principle of law for the litigation. See Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 8 n.2, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980). The 1961 Note of the Advisory Committee on the Civil Procedural Rules recognized that § 1292(b) might be available in such multi-party situations, but said, “The Rule 54(b) procedure seems preferable for those cases, and § 1292(b) should be held inapplicable to them. .. . ” 9 Moore’s Federal Practice § 110.22[5] follows this approach, and states, “If an order can be made appealable by a Rule 54(b) certificate, it, and not a § 1292(b) certificate, should be sought.” In the case at hand, the controlling question of law is the interpretation of the Pennsylvania Code. That issue is not relevant to the still pending contractual claim by Ford against Barnhart. Since nothing further remained to be considered on the Ford-Harr claim, it would have been preferable for the district court to have utilized Rule 54(b). However, since the court did not enter judgment on that claim, it is not final at this point and not presently appeal-able. It cannot be said, therefore, that § 1292(b) is inapplicable. As 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure § 3929 (1977) puts it: “Since the Rule itself [54(b)] provides that absent such entry of judgment, any order disposing of less than all the claims or parties is not final, §■ 1292(b) should be available to permit certification and appeal.” Because we are presented with an issue of law that was certified properly under § 1292(b), we will not dismiss the appeal, even though we believe that Rule 54(b) should have been utilized. Dismissal at this stage would result in a remand to the district court so that it could enter an appropriate judgment. We think that the delay and expense generated by that procedural detour is not required here. We conclude that we have jurisdiction to consider the merits and proceed to that task. II. Pennsylvania has enacted a comprehensive statute, the Surface Mining Conservation and Reclamation Act, governing strip mining in the state. Pa.Stat.Ann. tit. 52, §§ 1396.1-1396.25 (Purdon Supp.1981). This legislation requires strip mine operators to secure a permit and directs that they post a bond as security for proper backfilling and restoration after the work is completed. Id. at § 1396.4. Funds received from forfeiture of the bond may be expended by the Secretary of the Department of Environmental Resources for reclaiming and planting the land affected by the operation, if the Secretary determines the expenditures to be reasonable, necessary and physically possible. Id. at § 1396.18(b). The statute also authorizes the Department to promulgate appropriate regulations for the conduct of surface mining operations coming within the provisions of the Act. Id. at § 1396.4b(a). Among the regulations of the Department of Environmental Resources in effect at the time this controversy arose are those published at 25 Pa.Code, Chapter 77, Sub-chapter D, captioned “Requirements Accompanying Permits Authorizing the Operation of Surface Coal Mines.” Section 77.92 is entitled “Requirements” and subsection (a) is labeled “General restrictions.” That subsection requires a permittee to limit his operation to designated areas, secure necessary federal permission if navigable waters will be affected, and submit monthly reports of treatment facilities. Subsection (f), “Mining Procedures,” is the regulation at issue. In pertinent part it reads as follows: “The following mining procedures shall apply: ... (2) Backfilling equipment needed to complete the restoration shall not be removed from the operation until all backfilling and leveling has been completed and released by the Department. Backfilling equipment shall be operable, in use, and capbale [sic] of meeting the requirements of the reclamation plan throughout the life of the mining operation.” The district judge interpreted § 77.-92(f)(2) as an absolute prohibition against removal of backfilling equipment until reclamation is completed. He construed the regulation as a broad, coercive measure designed to accomplish the legislative aim of protecting the land from the ravages of strip mining. As such, the regulation would even bind plaintiff finance company. The court concluded that the equipment must remain at the site until someone, possibly Ford itself, completes the backfilling. Although the Pennsylvania state courts have not addressed the issue, the Pennsylvania Department of Environmental Resources had earlier adopted the same approach as did the district court here. In a similar factual situation, the Department prohibited a finance company from repossessing backfilling equipment from a mining site. The Environmental Hearing Board, an adjudicatory body within the Department, however, held that § 77.92(f)(2) was directed at operators and not finance companies, since they have no part in creating the condition for which DER would hold them liable. Associates Commercial Corp. v. Pennsylvania Department of Environmental Resources, Docket No. 78-140-B (July 2, 1979). Likewise, in several bankruptcy proceedings, DER contended that a trustee in bankruptcy could not remove backfilling equipment where the debtor had not completed reclamation. District and bankruptcy courts rejected this contention, and pointed out that the bond posted by the debtor as a prerequisite to beginning its mining operations was available to meet the backfilling requirements. Zacherl Coal Co. v. Smith, 9 B.R. 952 (Bkrtcy.W.D.Pa.1981); Reddale Coal Co. v. Department of Environmental Resources, No. 79-330 (Bankruptcy Court W.D.Pa. March 31, 1980). As an administrative agency, the Department of Environmental Resources has only such authority as the legislature grants it. Hi-Craft Clothing Co. v. NLRB, 660 F.2d 910 (3d Cir. 1981). Nothing in the Surface Mining Conservation and Reclamation Act itself refers to financing institutions as such, nor does the authority it gives DER to promulgate regulations extend the Department’s reach to finance companies. Moreover, our review of the statute leads us to doubt that the General Assembly ever intended the Department to issue regulations impairing the security interest of creditors created by the legislature in the Uniform Commercial Code. 13 Pa.Cons. Stat.Ann. §§ 1101-9507 (Purdon Supp. 1980). In sum, we are convinced, as was the agency’s own adjudicatory arm, the Environmental Hearing Board, that § 77-92(f)(2) does not apply to persons in the position of the plaintiff here. Other considerations also support our conclusion. Under the Pennsylvania Statutory Construction Act, the titles of sections of a statute may be used as an aid in construction. 1 Pa.Cons.Stat.Ann. § 1924 (Purdon Supp.1980). As noted above, the caption of the subchapter containing the regulation at issue is “Requirements Accompanying Permits Authorizing the Operation of Surface Coal Mines.” It is thus apparent that the rule is directed to the operator, the only person required to secure a permit — not to a financing agency. Moreover, if the creditor is not allowed to repossess the equipment until reclamation is completed, the equipment would be left in the hands of a landowner who is under no duty to maintain or protect it. In that circumstance, no public interest is served by the inevitable deterioration of the equipment and impairment of the security. If the regulation’s purpose is to force the finance company to arrange for reclamation as a type of ransom for the equipment, the scope of the rule is clearly beyond the intent of the legislature and the authority delegated to the agency. We are not unmindful of the ravages of strip mining, the lack of environmental concern and financial responsibility evidenced by some strip mine operators, or the need, often, for drastic measures to combat these problems. All of these concerns were ably articulated by the district court in its bench opinion and by the appellees and amicus curiae in their briefs and arguments here. We point out, as did the state Environmental Hearing Board in Associates Commercial Corp., supra, that we decide only the issue before us — the applicability of § 77.-92(f)(2) to a party whose only contact with the strip mine operator and the mining operation is its security interest in a piece of mining equipment. We express no opinion on whether the same result would obtain in a case where the operator attempted to sell the equipment while it was on the mine site or where the creditor and operator “staged" the default and foreclosure in order to circumvent the regulation. We conclude that the district court erred in holding that the regulation applies to plaintiff. Ford’s right as a secured creditor to repossess the loader, therefore, is not affected by the regulation. III. Defendants assert that they have a right to a possessory lien on the loader. They claim the lien exists not only by virtue of § 77.92(fX2) itself, but also because of their status as landlords to whom rent in the form of royalties is owing. The district court, however, ruled without explanation that there was no lien, and the later orders do not address the question. As we noted earlier, the scope of review on a § 1292(b) appeal is limited. Since no final judgment was entered, we are doubtful that the possessory lien asserted by defendant is before us, other than through the regulation which we hold is not effective here. In these circumstances, we believe it advisable to remand to the district court for findings on the issue and a ruling consistent with them. We do note in passing that defendant’s reliance upon a landlord’s lien seems misplaced in view of the Pennsylvania law treating an agreement for the right to mine coal to exhaustion as a sale, not a lease. See Hummel v. McFadden, 395 Pa. 543, 150 A.2d 856 (1959). Accordingly, the case is remanded to the district court for further proceedings consistent with this opinion. . Attached to the complaint were copies of the installment sale contract between Highway Equipment and Barnhart, the financing statements filed by Highway Equipment, the assignment from Highway Equipment to Ford, and the notices of assignment filed by Ford. The Harrs contend that the notices of assignment filed by Ford are ineffective because they are unsigned. Because of its disposition of the case, the district court did not rule on the Harrs contentions. We do not discuss the issue here, and leave it for further development in the district court. . If the district court abuses its discretion in granting a Rule 54(b) certification, the order may be reversed on appeal. Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360 (3d Cir. 1975); see also, Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980). . We also call to the attention of counsel and the district courts the provision of Rule 23 of this court: “. . . The controlling question of law presented for review shall be concisely stated in one sentence, if possible, expressed in the terms and circumstances of the case but without unnecessary detail. The expression will be deemed to include every subsidiary question fairly comprised therein.” Rules of the U. S. Court of Appeals for the Third Circuit (1978). . It is also true, of course, that administrative regulations must give way in case of conflict with duly enacted statutory provisions.

National Indian Youth Council v. Watt

BREITENSTEIN, Circuit Judge. This appeal challenges the district court’s action sustaining the approval by the Interior Department of a lease and plan for a surface mining, coal operation on the Navajo Reservation in New Mexico. The complaint alleges that the Department violated various federal statutes in granting its approval. The case was here earlier on appeal from the district court’s denial of a preliminary injunction. We affirmed and remanded for trial on the merits. National Indian Youth Council v. Andrus, 10 Cir., 623 F.2d 694. After trial the district court made comprehensive findings of fact and conclusions of law in a published opinion, 501 F.Supp. 649, which denied a permanent injunction, and dismissed the action. We affirm. The plaintiffs-appellants are the National Indian Youth Council, a non-profit organization, and several individual Navajo Indians. The defendants-appellees are the Secretary of the Department of the Interior (Interior), various officials of Interior, and the lessees Consolidation Coal Company and El Paso Natural Gas Company (together, ConPaso) which were permitted to intervene as defendants. The Navajo Nation (the Tribe), has not been joined as a party. The complaint sought both a declaratory judgment and injunctive relief. The record is voluminous and complex. The plaintiffs’ attack centers on alleged non-compliance with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq.; The Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C. § 1201 et seq.; the National Historic Preservation Act of 1966 (NHPA), 16 U.S.C. § 470 et seq.; and various regulations under those Acts. I The background of the present controversies is necessary to an understanding of the situation. Because of the repeated use of acronyms and technical terms a glossary is appended to this opinion. In 1959 the Tribe granted a coal prospecting permit to El Paso Natural Gas covering 86,000 acres of land on the Burnham Chapter of the reservation. Between 1959 and 1968 the Tribe gave El Paso a lease and option to mine on lesser acreage but these were terminated without mining activity. In 1968 the Tribe, with Department approval, gave ConPaso a competitive lease on about 40,000 acres, the Burnham mine. The approval was before the passage of NEPA in 1969. In 1973 ConPaso proposed the installation of two coal gasification projects on the leasehold. As required by NEPA the Bureau of Reclamation (BR) analyzed the environmental impacts of the proposed project, related surface mining operations, and alternatives. BR submitted its draft environmental statement, DES 74-77, to the Council on Environmental Quality (CEQ), to other federal and state agencies, and to the public in July, 1974. ConPaso revised the project in 1975. One of the gasification plants was eliminated. The leasehold was divided into two distinct mining areas. Nine thousand acres, the Northern Mine, was to be used for the direct production and commercial sale of coal. The remaining acreage, the Southern Mine, was to supply coal to the gasification project to be located there. In accordance with 25 C.F.R., Part 117, ConPaso, in December, 1975, submitted a Mining and Reclamation Plan (the 1975 Plan) to the United States Geological Survey (USGS), the Bureau of Indian Affairs (BIA), and the Tribe. The lease was renegotiated in 1976. This lease expanded the Tribe’s control over project operations, instituted preferential hiring guarantees for Navajos, and imposed environmental protection guarantees to be followed by the lessees and administered by the Tribe and federal and state agencies. Under the renegotiated lease the Tribe will receive substantial financial benefits in the form of royalties. The new lease also protected the paleontological and archaeological resources of the leasehold. After consideration of written comments on DES 74r-77, and public hearings, BR issued its final environmental impact statement, FES 77-03, on the renegotiated lease and the 1975 Plan. BIA prepared and circulated a draft impact statement. Following comments and public hearings, BIA in May, 1977, issued its final impact statement, FES 77-13. On August 31,1977, the Secretary approved the renegotiated lease. The Secretary’s final approval of the 1975 Mining Plan was delayed by SMCRA. This Act created the Office of Surface Mining (OSM). The Secretary sent the 1975 Plan to OSM for review and recommendations. After OSM’s study of the 1975 Plan, ConPaso submitted to OSM a restructured Mining and Reclamation Plan (the 1978 Mining Plan). The 1978 Plan was also sent to the Tribe, BIA, and New Mexico. Both the Tribe and New Mexico approved the revised plan. BIA recommended approval. OSM issued, revised and reissued an Environmental Assessment (EA) which considered the two previously submitted impact statements and concluded that they adequately discussed the environmental impacts and that no supplemental impact statement was required by NEPA. The recommended approval by OSM of the 1978 Mining Plan with stipulations was published in the Federal Register. After a 50-day comment period, the Assistant Secretary of the Interior issued a “Finding of No Significant Impact” (FONSI) on the basis of his review of the impact statements and EA. On January 11, 1980, the Secretary of the Interior gave final approval to the 1978 Mining Plan. Among other things, the stipulations limited for seven years the acreage available for mining and provided for protection of the environment and of paleontological and archaeological sites. This suit was filed in the District of Columbia and transferred to the United States District Court for the District of New Mexico. In April, 1980, ConPaso notified the Tribe of its intent to begin mining operations. The plaintiffs sought and secured a temporary restraining order. It was vacated after a five-day hearing which resulted in the denial of a preliminary injunction. Plaintiffs then appealed to this court and moved for an injunction pending appeal. We granted a temporary injunction, expedited the hearing, vacated our temporary order, and remanded for trial on the merits. In so doing we noted the finding of the trial court, 623 F.2d 694, 695, that: “The first year of mining will produce 250,000 to 300,000 tons of coal and require disturbance of an eight-acre area. Fifty-seven (57) additional acres will be required for roads, sediment ponds, temporary spoil placement and facilities.” We also noted the lack of proof of harm to the individual plaintiffs, the substantial royalties which the Tribe will receive, the opportunities to Indians for employment, the energy problems confronting the United States, and the public interest in protection of the environment. Id. at 696. We said that the balancing of the interests should await decision on the merits. Id. According to ConPaso’s accounting, the proceedings which culminated in the Secretary’s approval of the lease and mining plan involved 26 federal agencies or departments, nine New Mexico state agencies, 10 offices of the Navajo Tribe, and 16 environmental and public interest groups. See R. XX, Ex. 38. Plaintiffs do not challenge the count. The first impact statement, DES 74-77, filled some 700 pages; the final BR statement, FES 77-03, had 800 pages plus appendices; the supplementing BIA statement, FES 77-13, contained 250 pages with appendices. The final EA of OSM was 86 pages in length and was accompanied by a 175 page Technical Analysis. In denying plaintiffs’ motion for an injunction pending appeal, the trial court on May 9, 1980, made 66 findings of fact and 10 conclusions of law, R. IV, p. 995 et seq. These fact findings were incorporated in the August 22, 1980, Memorandum Opinion dismissing the action. That opinion covers 56 typewritten pages. R. XXX, p. Ill et seq.; see also 501 F.Supp. 649-684. The record before us consists of 31. volumes of pleadings, exhibits, depositions, and transcripts. The mass of work which has been done on the project is impressive. II Judicial review of environmental impact statements has been discussed in many cases. Such statements are required when major federal action significantly affects the human environment. 42 U.S.C. § 4332(2)(C). The type of statement required depends upon the nature of the federal action proposed. Kleppe v. Sierra Club, 427 U.S. 390, 402, n. 14, 96 S.Ct. 2718, 2726, 49 L.Ed.2d 576; citing Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289, 322, 95 S.Ct. 2336, 2356, 45 L.Ed.2d 191. The federal action here is the approval by the Secretary of the tribal lease of unallotted Indian Lands. This approval is required by 25 U.S.C. § 396a. National Helium Corporation v. Morton, 10 Cir., 486 F.2d 995, 1001-1003, sets out the limits on judicial review of an environmental impact statement (EIS). We have consistently followed the National Helium decision. See e. g. Environmental Defense Fund, Inc. v. Andrus, 10 Cir., 619 F.2d 1368, 1374-1375; and Manygoats v. Kleppe, 10 Cir., 558 F.2d 556. The controlling principle is summarized in Manygoats, 558 F.2d 556 at 560, as being the application of the rule of reason to an EIS to see that it is “a good faith, objective, and reasonable presentation of the subject areas mandated by NEPA.” Accord, Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227-228, 100 S.Ct. 497, 499-500, 62 L.Ed.2d 483, and Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460. III Plaintiffs say that Interior violated NEPA in failing to prepare a supplemental EIS on the proposed 1978 Mining Plan. They rely on 40 C.F.R. § 1502.9(eXl). This regulation was promulgated by the Council on Environmental Quality (CEQ) which was created by NEPA to advise the President on environmental policy. See 42' U.S.C. § 4342. A 1970 Presidential Order authorized CEQ to issue “guidelines” for the preparation of statements on proposals affecting the environment. See Andrus v. Sierra Club, 442 U.S. 347, 353 n. 10, 99 S.Ct. 2335, 2339, 60 L.Ed.2d 943. These guidelines were advisory. Id. at 356-357, 99 S.Ct. at 2341. A 1977 Presidential Order required CEQ to issue regulations for NEPA procedure. Id. at 357, 99 S.Ct. at 2341. The guidelines thus became mandatory. Id. at 357 and 358, 99 S.Ct. at 2341. The pertinent regulation provides, 40 C.F.R. § 1502.-9(c)(1), that, a supplemental impact statement shall be prepared: “if (i) the agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” The attack is on FONSI, the January 11, 1980, “Finding of No Significant Impact.” At the time of this finding Interior was provided with BR’s final impact statement, FES 77-03, as supplemented by FES 77-13 of BIA, and the EA issued by OSM. ConPaso had by then proposed the 1978 Plan. Plaintiffs argue that the rule of reason applicable to judicial review of agency action does not apply to a FONSI decision because that must be tested by the CEQ standards. Avoiding semantics, we take the regulations at their face value. The CEQ regulations do not define “substantial changes.” The district court said, 501 F.Supp. at 662, that “ ‘substantial changes’ must be ones for which there do not already exist formal EIS analysis and documentation.” Plaintiffs say that the 1978 Plan makes a substantial change because it addresses mining activity only in the northern portion of the leasehold. The impact statements show consideration of environmental consequences in both the northern and southern segments. We have no reason to repeat the district court’s detailed analysis and comparison of the original and final plans. See 501 F.Supp. at 663. Its findings sustain its conclusion that the acreage reduction of the 1978 Plan is not a substantial change. The argument that the incorporation of various provisions for environmental protection makes a substantial change merits little consideration. In essence these provisions require that before mining may proceed on the larger segment of the northern area, the mining in the reduced tract for seven years must establish compliance with performance standards, enumerated by stipulation and set forth in SMCRA. See e. g. Stipulations 1, 2, 3, 4 and 22, R. XIX, Ex. 19. This is not a substantial change but the imposition of “continuing control on mining activities previously contemplated.” 501 F.Supp. at 663. The second CEQ test relates to “significant new circumstances or information.” Plaintiffs contend that the passage of SMCRA is a significant new circumstance. OSM, the administrative agency created by SMCRA, studied and recommended approval of the 1978 Plan. We agree with the First Circuit that “a new statute or regulation clearly does not constitute a change in the proposed action or any ‘information’ in the relevant sense.” Concerned Citizens, etc. v. Secretary of Transportation, 1 Cir., 641 F.2d 1, 6. Plaintiffs assert that new information, relating to rehabilitating the land after the end of mining, has come to light. We recognize that reclamation and re vegetation are integral to the project. The impact statements discuss the two problems in comprehensive detail. See e. g. FES 77-03 at § 16., 4., 4 and FES 77-13 at §§ 1., 4., 2., 2 and 1., 4., 2., 3; and generally § 3., 2. The agencies had available and considered a wealth of information bearing on the difficulty and uncertainty of reclamation. “If one term describes the high, dry country where mining is suggested the term is fragility.” FES 77-03, § 3., 2 at p. 3.9. The district court noted that for several years experimental reclamation had occurred at the Utah International Mine located near the site of the ConPaso mine. A plaintiffs’ witness, familiar with the Utah International project, said that from the time artificial irrigation ended “success would need to be demonstrated in a period of time of not less than 22 years in this particular geographic region.” R. XIII, p. 62. The EA issued by OSM devotes 16 pages to “Evaluation of Revegetation Potential,” Supp. to App. pp. 145-150. In concluding that plant revegetation was possible if certain practices were used, OSM said: “Careful monitoring will be required to determine whether, in fact, cover will be maintained.” Id. at 146. OSM said that significant effects on the environment were identified and discussed in the previous FESs. OSM proposed approval with stipulations. Id. at 79. The Plan contains appropriate stipulations to mandate monitoring. See Supp. to App. pp. 182-216. The plaintiffs have failed to identify any specific, significant information generated after the 1977 FES statements. They show nothing more than the possibility that improved reclamation measures might be available at some unidentified time in the future. The issue must be decided on the basis of the record, not by crystal ball gazing. Plaintiffs claim that new information was developed on paleontological and archaeological sites which showed need of action to preserve the sites before the start of mining operations. R. XXI, Ex. 13. The information on which plaintiffs rely does no more than confirm the number and significance of the sites discussed in the FESs. We conclude that the standards of the CEQ regulations were satisfied. Plaintiffs contend that the impact statements are deficient because they failed to discuss the alternative of delay, pending revegetation information from nearby mines. Environmental impact statements must discuss alternatives to a proposed action. 42 U.S.C. § 4332(2)(C); see also CEQ regulation, 40 C.F.R. § 1502.2(e). As the district court observed, neither NEPA, nor any regulations, requires an agency to address delay as a specific alternative, 501 F.Supp. at 670-671. NEPA does not contemplate detailed discussion of remote and speculative alternatives. See Environmental Defense Fund, Inc. v. Andrus, 10 Cir., 619 F.2d 1368, 1375, which says that the discussion of alternatives need not be “exhaustive” but must contain sufficient information to permit a “rule of reason” determination. FES 77-03 discusses at length alternatives including deferral of the project. R. XVI, FES 77-03, Vol. 1, Chap. 8; see also the discussion in FES 77-13, Ch. XIII, pp. 8-1 to 8-6, and EA, Supp. to App., p. 81 et seq. The plaintiffs’ emphasis on delay means an indefinite, long-term postponement of the project, the equivalent of project abandonment. The approval of the 1978 Mining Plan is conditioned on a showing at the.end of seven years of a trend toward successful reclamation. Thus the project may go forward and new information obtained. This is sensible. The requirement for discussion of alternatives is procedural. As said in Stryker’s Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227-228, 100 S.Ct. 497, 499-500, 62 L.Ed.2d 483: “ * * * once an agency has made a decision subject to NEPA’s procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences; it cannot ‘interject itself within the area of discretion of the executive as to the choice of the action to be taken.’ Kleppe v. Sierra Club, 427 U.S. 390, 410, n. 21 [96 S.Ct. 2718, 2730, 49 L.Ed.2d 576].” See also Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460. IV The purpose of the National Historic Preservation Act (NHPA), is the preservation of historic resources. Plaintiffs contend that defendants failed to comply with NHPA and regulations promulgated thereunder. The district court considered plaintiffs’ NHPA claims at length, 501 F.Supp. at 674-680, and rejected their contentions. In their presentation to us, plaintiffs narrow the issue to one of timing. Section 470f, 16 U.S.C., requires federal agencies “prior to the issuance of any license” to “take into account the effect of the undertaking on any * * * site * * * included in or eligible for inclusion in the National Register [of Historic Places].” Sections 470i and j create the Advisory Council on Historic Preservation (Council) and delegate to it the duties of advice, comment, and administration regarding historical preservation. Council regulations, 36 C.F.R. Part 800, prescribe procedural steps for a federal agency to follow in complying with NHPA. Under 36 C.F.R. § 800.4 the lead agency in a federal project has the responsibility for resource identification and protection. The lead agencies for the ConPaso project were BR, BIA, and USGS, whose duties under the regulations were non-delegable. Id. These duties were (1) consulting with the State Historical Preservation Officer (SHPO) with the right to require non-federal participation, (2) requesting a ruling from the Secretary of the Interior whether the archaeological sites on the project met the requirements of the National Register, and (3) securing comments from the Council, whose action could not be completed until the Secretary ruled on the sites. See § 800.4 and § 800.6. The Council’s comments may be in the form of a Memorandum of Agreement executed by a lead agency official, the executive director of the Council, and SHPO. See § 800.-6(b)(6), (c)(1), and (c)(3). In June, 1973, the Chief Archaeologist of the Museum of New Mexico conducted a preliminary archaeological survey of the leasehold. In late 1976 ConPaso proposed to secure archaeological, paleontological, and historical surveys by qualified personnel before any land disturbing activities. R. XXI, Ex. 19. SHPO reviewed the proposal, found that it satisfied the “applicable laws and regulations,” R. XXI, Ex. 20, and sent his approval to BR. Id. The Navajo Nation’s Cultural Resource Management Program (CRMP), and the Department of Geology of the Museum of Northern Arizona made intensive archaeological inventory surveys of the Northern Mine area and, in 1979, submitted their reports to National Park Service, NPS, whose assistance had been requested by USGS. The mentioned actions satisfied the consultation duty under § 800.4. On the basis of the noted surveys, the Secretary of Interior has designated sites, under the National Register criteria, in the Northern Mine area. The timing problem asserted by plaintiffs is that the designations did not precede the comments of the Council. The site designations took place pursuant to stipulations in the Memorandum of Agreement executed by the required agencies and ConPaso in October, 1978. See R. XXI, Ex. 13. By signing this agreement with the Council before requesting site designations by the Secretary, the agencies technically failed to comply with the timing requirements of § 800.4(aX4). The technicality has no substantive effect on the protection and preservation of historic sites. The Council believed that its action was in accord with the statute and regulations. It wrote USGS on November 13, 1978, that the Memorandum Agreement contained the comments required by NHPA and the regulations. R. XXI, Ex. 21. See 36 C.F.R. § 800.6(c)(3). Stipulations in the agreement commit ConPaso to various protective measures and charge USGS with responsibility for assuring compliance. The Agreement says, R. XXI, Ex. 13: “ * * * the implementation of the undertaking in accordance with the following stipulations will avoid or satisfactorily mitigate the adverse effect on historic properties.” We are convinced that the Council and all other participating agencies made a good faith, objective, and reasonable effort to satisfy NHPA. The comprehensive protective measures should fully protect the historic sites. Another timing argument of plaintiffs is that the Council action came after the approval of the 1976 lease, the submissions of FES 77-03 and FES 77-13, and the 1978 EA issued by OSM. Plaintiffs say that a complete survey of the leasehold and consultation with the Council should have preceded the approval of the 1976 lease. Section 470f requires federal agencies to “take into account” the effect of a proposal on historic sites “prior to the issuance of any license.” Neither NHPA nor the regulations define “license.” Although lease approval is necessary for mining on Tribal lands, no operations could have occurred until the approval of the Mining Plan under SMCRA and the pertinent regulations. See 25 C.F.R. § 177.7. Approval of the Mining Plan, not approval of the lease, is the federal action which might affect historic sites. Study and evaluation of the ConPaso project went on for many years. The original proposal encompassed 40,000 acres. The approved mining operations for the first year were confined to eight acres plus 57 acres for needed facilities. The argument that a complete survey must be made of 40,000 acres before mining begins on eight acres borders on the absurd. The many agencies involved have patiently made exhaustive studies of the potential historical sites. The protective stipulations are adequate, reasonable, and enforceable. In F. C. C. v. WNCN Listeners Guild, 450 U.S. 582, 101 S.Ct. 1266, 1276, 67 L.Ed.2d 521, the Supreme Court repeated the statement in Red Lion Broadcasting Co. v. F. C. C., 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371, that “the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong .... ” The case at bar presents no compelling indications. We agree with the district court that the agencies’ interpretations of NHPA and the regulations thereunder, and the application of both to the ConPaso project, are reasonable and proper. V Plaintiffs urge that the federal defendants have violated the NEPA requirement, 42 U.S.C. § 4332(1) that “the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter.” The catch-all argument seems to be that the quoted provision imposes a duty separate from and additional to the preparation of an adequate environmental impact statement as required by § 4332(2)(C). We have held that the agency actions complied with ■NEPA, SMCRA, and NHPA. Taken together the two impact statements FES 77-03 and FES 77-13, of BR and BIA, the EA issued by OSM, and the memorandum agreement of the Council adequately inform the Secretary of the project’s potential effect on the human environment. The study of the project has covered both many years and many thousands of pages of paper. The various statements, assessments, stipulations, and agreements establish a comprehensive, good faith, objective, and reasonable presentation of the subject areas as mandated by NEPA and the other statutes with which we are concerned. The Secretary has the responsibility for balancing the many factors pertaining to the project. The court may set aside his decision “only for substantial procedural or substantive reasons as mandated by statute.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460. No such reasons exist in the instant case. Affirmed. APPENDIX GLOSSARY 1— COUNCIL: The Advisory Council on Historic Preservation administers and interprets NHPA. 2— BIA: The Bureau of Indian Affairs. 3— BR: Bureau of Reclamation. 4— CEQ: The Council on Environmental Quality established by NEPA to advise the President on environmental policy matters. 5— CONPASO: A contraction of Consolidation Coal Company and El Paso Natural Gas Company, the lessees, and project operators. 6— CRMP: The Cultural Resources Management Program of the Navajo Tribe involved in the protection of cultural resources on the Reservation. 7— CULTURAL RESOURCES: A generic term referring to archaeological, paleontological, and historic sites, either collectively or individually. 8— DES: Draft EIS. 9— EA: The Environmental Assessment prepared by OSM. 10— EIS: Environmental Impact Statement. 11— FES: Final Environmental Statement. 12— FONSI: The Finding of No Significant Impact made January 11, 1980, by the Assistant Secretary of Interior. 13— GASIFICATION: A process to produce gas from coal. 14— INTERIOR: The United States Department of the Interior. 15— 1968 LEASE: By this lease the Tribe leased about 40,000 acres to ConPaso. No mining operations were conducted under it and it was superseded by the 1976 lease. 16— 1976 LEASE: The August, 1976, lease which superseded 1975 lease. 17— 1975 MINING PLAN: The Plan submitted by ConPaso in December, 1975, for mining on the entire leasehold. 18— 1978 MINING PLAN: Also known as the “Restructured Mining and Reclamation Plan” this 3-volume document covered only the Northern Mine and was approved on January 11, 1980. 19— NATIONAL REGISTER: The National Register of Historic Places, the official list of districts, sites, buildings, structures, and objects determined to be significant in American history, architecture, archaeology, and culture. 36 C.F.R. Part 60. Once qualified and listed in the National Register, a site is provided certain protections. 20— NEPA: National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. 21— NHPA: National Historic Preservation Act of 1966, 16 U.S.C. § 470 et seq. 22— NORTHERN MINE: The area approved for mining in the 1978 Mining Plan. 23— OSM: The Office of Surface Mining established by SMCRA. 24— SHPO: The New Mexico State Historic Preservation Officer. 25— SMCRA: The Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1201 et seq. 26— TRIBE: The Navajo Tribe, also called the “Navajo Nation.” The Tribe owns the Reservation on which the ConPaso mining project is located. 27— USGS: The United States Geological Survey.

Buckeye Power, Inc. v. Environmental Protection Agency

WEICK, Circuit Judge. The petitioners are public utility companies which operate power plants within the State of Ohio and the Commonwealth of Kentucky. Pursuant to the Clean Air Act Amendments of 1970, 42 U.S.C. §§ 1857 to 1858 (1973 Supp.), Ohio and Kentucky submitted pollution-abatement plans to the Administrator of the Environmental Protection Agency (EPA). The implementation plans, with minor exceptions not here relevant, were approved by the Administrator. The public utility companies have petitioned this Court, under the provisions of 42 U.S.C. Section 1857h-5(b) (1), to review the Administrator’s action in approving the state plans. Petitioners then filed a motion in this Court to require the Agency (EPA) to supplement the record with transcripts of the public hearings held in Ohio and Kentucky in connection with the adoption of the plans, to determine the scope of review, and to remand to the Agency for compliance with our determinations. Briefs and appendices were filed, and the motion and the Agency’s response thereto were argued orally to the panel. Petitioners contend that the approval of the state plans by the Administrator violated the law in three particulars, namely, (1) the Administrator did not permit interested parties, including the petitioners, to participate in the proceedings through submission of written data, views and arguments, as required by Section 4 of the Administrative Procedure Act (APA), 5 U.S.C. § 553 (1967); (2) the plans were approved without regard to the fact that it is impossible for the petitioners to comply with the standards of the plans; and (3) the plans were approved without the filing of an Environmental Impact Statement. We hold that the Administrator’s approval of the Ohio and Kentucky plans without permitting participation by interested parties was a violation of the Administrative Procedure Act. We further hold that it was not necessary that the Administrator conduct full-scale hearings on the impossibility-claims of the individual petitioners, such claims being assertable as a defense in future federal or state enforcement proceedings. We hold that the Agency need not supplement the record with transcripts of the public hearings in Ohio and Kentucky. Finally, we hold that the Administrator was not required under the National Environmental Policy Act, 42 U. S.C. §§ 4321 to 4347 (1973 Supp.), to file an Environmental Impact Statement prior to the approval of the state pollution-abatement plans. HISTORY AND STRUCTURE OF THE CLEAN AIR ACT The problem of air pollution in the United States has been under the consideration of Congress for many years. In 1955 the Committee on Interstate and Foreign Commerce reported favorably on the basic legislation establishing the federal air pollution research and technical assistance program which became Public Law 159 of the 84th Congress, 69 Stat. 322. On a somewhat regular basis, this initial legislation has been modified to improve, strengthen and accelerate programs for the abatement and prevention of air pollution. Pub.L. 88-206, 77 Stat. 392; Pub.L. 89-272, 79 Stat. 992; Pub. L. 90-148, 81 Stat. 485. However, it was not until the Clean Air Act Amendments of 1970 that Congress restructured the Act in a manner designed to insure unequivocally the reduction of air pollution. The House Report on the 1970 Amendments put it this way: “The purpose of the legislation reported unanimously by your committee is to speed up, expand, and intensify the war against air pollution in the United States with a view to assuring that the air we breathe throughout the Nation is wholesome once again. The Air Quality Act of 1967 (Public Law 90-148) and its predecessor acts have been instrumental in starting us off in this direction. A review of achievements to date, however, make abundantly clear that the strategies which we have pursued in the war against air pollution have been inadequate in several important respects, and the methods employed in implementing those strategies often have been slow and less effective than they might have been.” (H.Rep.No. 91-1146, 91st Cong., 2d Sess. 1 (1970); 3 U.S.Code Cong. & Admin. News 5356 (1970)). The 1970 Clean Air Act Amendments, in an effort to achieve the goal of elimination of air pollution, revamped the entire predecessor legislation. It incorporated a dual (state-federal) approach to curbing air pollution and provided substantial penalties for failure of compliance, i. e., not more than a $25,000-fine per day or one year imprisonment, or both, for the first conviction, and a $50,000-fine per day or two years’ imprisonment, or both, for a violation after the first conviction. 42 UiS.C. § 1857c-8(c) (1973 Supp.). The numerous and detailed provisions of the 1970 Act make it indeed intricate. A basic outline of its structure, however, will facilitate the understanding of the contentions of the parties here. Within thirty days after enactment of the 1970 Act the Administrator of the EPA was required to promulgate and publish national ambient [general atmospheric] air quality standards for major air pollutants. These standards were subdivided into two major groups: primary ambient air quality standards, and secondary ambient air quality standards. 42 U.S.C. § 1857c-4 (1973 Supp.). Following publication of these standards, each state was required to hold public hearings and to adopt a plan within guidelines provided by the Administrator and published in the Code of Federal Regulations, for the aid of the states, such plan providing for the implementation, maintenance and enforcement of national primary and secondary ambient air quality standards. The state plans had to provide for the attainment of primary standards within three years of the date of approval of the plans. Moreover, the plans had to be completed and sent to the Administrator for approval within nine months of the date of promulgation of the air quality standards. 42 U.S.C. § 1857c-5 (1973 Supp.). After these state plans were submitted to him, the Administrator was required to approve or disapprove them (or portions thereof) within four months. Specifically, the Act provides: “(2) The Administrator shall, within four months after the date required for submission of a plan under paragraph (1), approve or disapprove such plan or each portion thereof. The Administrator shall approve such plan, or any portion thereof, if he determines that it was adopted after reasonable notice and hearing and that— (A)(i) in the case of a plan implementing a national primary ambient air quality standard, it provides for the attainment of such primary standard as expeditiously as practicable but (subject to subsection (e) of this section) in no case later than three years from the date of approval of such plan (or any revision thereof to take account of a revised primary standard); and (ii) in the case of a plan implementing a national secondary ambient air quality standard, it specifies a reasonable time at which such secondary standard will be attained; . . . .” (42 U.S.C. § 1857c-5(a) (1973 Supp.)). After the approval or disapproval of a state plan by the Administrator, interested parties who desired to review his action were required within thirty days to file a petition for review in the United States Court of Appeals having jurisdiction over their area. Section 1857h-5(b)(1) of Title 42 U.S.C. provides: “ . . .A petition for review of the Administrator’s action in approving or promulgating any implementation plan under section 1857c-5 of this title . . . may be filed only in the United States Court of Appeals for the appropriate circuit. Any such petition shall be filed within 30 days from the date of such promulgation or approval, . . . . ” If a party fails to petition for review of the approval or disapproval of a state plan as prescribed by Section 1857h-5(b)(1), he is thereafter precluded from asserting the impropriety of the Administrator’s action in this regard. “Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement.” (42 U.S.C. § 1857h-5(b)(2) (1973 Supp.)). Having submitted an approved plan, the state, with a single exception, is barred from modifying the provisions of its plan. The exception is found in Section 1857e-5(f)(1), wherein it is provided : “Prior to the date on which any stationary source or class of moving sources is required to comply with any requirement of an applicable implementation plan the Governor of the State to which such plan applies may apply to the. Administrator to postpone the applicablity of such requirement to such source (or class) for not more than one year.” Once a plan is approved, the state may enforce the provisions of its plan against its citizens in its own courts. 42 U.S.C. § 1857c-9(b) (1) (1973 Supp.). However, it is important to note that such an undertaking on the part of the state does not detract from the Administrator’s primary ability to enforce federally the provisions of every state plan against citizens of that state which drew the plan.- 42 U.S.C. §§ 1857C-8 & 1857e-9(b)(2) (1973 Supp.). On April 30, 1971, national ambient air quality standards for six pollutants were promulgated by the Administrator. 35 Fed.Reg. 8186, et seq. On August 14, 1971, the Administrator promulgated implementation plan guidelines which he had earlier proposed. 36 Fed.Reg. 15486, et seq. Under those guidelines adopted state plans were to be submitted to the Administrator by January 31, 1972. Four months later, on May 31, 1972, the Administrator published his approvals and disapprovals of 55 state implementation plans. 37 Fed.Reg. 10842, et seq. The Administrator took no comments from interested parties, and permitted no public participation in the decision to approve or disapprove the plans. On June 23d and June 26, 1972, within thirty days of the Administrator’s approval and disapproval of the various state plans, the petitioners filed their petitions for review, pursuant to 42 U. S.C. § 1857h-5(b) (1) (1973 Supp.). They allege that the plans, as approved by the Administrator, would require eventually that most of the petitioners’ generating plants be shut down and would require the cessation of new plant construction. Specifically, they allege that there is presently no technologically feasible method of removing from their coal-burning emissions an amount of sulfur sufficient to meet the standards, and that they cannot switch to “clean fuels”, such as natural gas, because such resources are now unavailable. While the main concern of the petitioners is that these impossibility-claims should be taken into account by the Administrator in approving state plans, they also attack and seek to set aside the Administrator’s approval of the Ohio and Kentucky plans on two additional levels: (1) that he did not permit participation of interested parties prior to approval of the state plans; and (2) that he did not file an Environmental Impact Statement. The Agency defends the actions of the Administrator on three alternative grounds. It asserts that individual claims of impossibility are irrelevant under the Clean Air Act Amendments of 1970. It asserts that even if such claims are relevant, the petitioners have already had an opportunity to present such claims at the state level, in state hearings, and that it is unnecessary to permit duplication at the federal level. Finally, it asserts that even if the claims are relevant and the state hearings are insufficient, the Clean Air Act Amendments of 1970 provide no point in the development of an approved pollution-abatement plan at which such claims may be presented. IS CLAIM OF IMPOSSIBILITY OF COMPLIANCE RELEVANT UNDER THE ACT? The Agency’s position that claims of individual impossibility of compliance are irrelevant under the Act is based upon two statements found in the legislative history of the 1970 Amendments. Legislative history is useful as an aid in the construction of an ambiguous statute, but care must be taken that it not be permitted to serve unreasonable ends. It is of little value where it contains conflicting reports of committees. The report on the Senate Bill stated: “ . . . [T]he health of people is more important than the question of whether the early achievement of air quality standards protective of health is technically feasible . Therefore the Committee determined that existing sources of pollutants either should meet the standard of the law or be closed down.” (S.Rept.No.91-1196, 91st Cong., 2d Sess., pp. 2-3 (1970)). Senator Edmund Muskie stated: “Predictions of technological infeasibility were not considered sufficient reasons to compromise the public health.” (116 Cong.Rec. (daily ed.) S.20598, Dec. 18, 1970). No such language is contained in the Act, but if such language is given effect the electric utilities plants in Ohio and Kentucky would be closed down and possibly those throughout the United States. If Congress intended such a far-reaching result in the 1970 Amendments to the Act, it certainly would have mentioned such an intention in the body of Amendments. However, the Senate Report and the statement of the Senator are, in fact, contradicted on several levels. First, it must be noted that although the legislative history cited above is from the Senate, the House Bill on amending the Clean Air Act was passed in lieu of the Senate Bill. See 3 U.S.Code Cong, and Admin.News, 91st Cong., 2d Sess., p. 5356 (1970). Moreover, in the legislative history from the House we find the following statements: “Whenever the Secretary finds that as a result of the failure of a State to enforce the plan applicable to such State, any ambient air quality standard is not met, the Secretary is directed to notify the affected State or States, persons not in compliance with the plan and other interested parties. If the failure of the State to take action extends beyond the 30 days after the Secretary’s notification, the Secretary may request the Attorney General to bring a suit on behalf of the United States in the appropriate U.S. district court to secure abatement of the pollution. The court may enter such judgment and orders as it deems necessary in the public interest and the equities of the case. In so doing the court must give due consideration to the practicability and to the technological and economic feasibility of complying with the provisions of the plan.” (Emphasis added). (H.R. Rep.No.91-1146, 91st Cong., 2d Sess. (1970) ; 3 U.S.Code Cong. & Admin. News 5364 (1970)). Second, in the implementation plan guidelines issued by the Administrator to aid the states in formulating pollution-abatement plans, specific recognition is given to cost-effectiveness and resource availability. The guidelines state: “Nothing in this part shall be construed in any manner: (b) To encourage a State to adopt any particular control strategy without taking into consideration the cost-effectiveness of such control strategy in relation to that of alternative control strategies. (d) To encourage a State to prepare, adopt, or submit a plan without taking into consideration the social and economic impact of the control strategy set forth in such plan, including, but not limited to, impact on availability of fuel, energy, transportation, and employment.” (40 C.F.R. § 51.2 (1972)). We find the Agency’s argument that technological infeasibility, high cost-benefit, and resource unavailability are irrelevant under the 1970 Amendments, devoid of merit. THE STATE PROCEEDINGS The Agency and the Intervenor argue that the question of when the petitioners will have an opportunity to present their claims at the federal level is irrelevant, since the petitioners have had or will have opportunities to present such claims at the state level at the hearing prior to the adoption of the plan, or at such time as the Governor may apply for an extension of time on behalf of the petitioners, or at the state enforcement proceedings against the petitioners. We cannot accept this argument except as to state enforcement proceedings. Regardless of what has happened or what will occur at the state level before state administrators, the simple fact is that the plans of Ohio and Kentucky, as they now stand, are subject to federal enforcement. In other words, even though the states may choose to exempt the petitioners in some manner or make accommodations to their predicament, the federal government can still enforce the existing plan in federal courts. 42 U.S.C. §§ 1857c-8, 1857c-9(b)(2) (1973 Supp.). Such a result is not idle spéculation. In Getty Oil Co. (Eastern Operations) v. Ruckelshaus, 467 F.2d 349 (3d Cir. 1972), cert. denied, 409 U.S. 1125, 93 S. Ct. 937, 35 L.Ed.2d 256 (1973), the background events of the case were explained as follows: “On December 29, 1971, Getty instituted an action in the Delaware Chancery Court seeking a temporary restraining order against enforcement of the challenged regulation by the state Secretary pending disposition of Getty’s appeal to the Delaware Water and Air Resources Commission. The restraining order was granted on December 30, 1971.” (467 F.2d at 354). Shortly after this state court injunction was issued, the Administrator of the EPA sent a letter informing the parties that violations of the existing Delaware plan were occurring. Approximately thirty days thereafter an. order was issued by the Administrator against violations of the plan, pursuant to 42 U. S.C. § 1857c-8(a) (1) (1973 Supp.). Getty was then forced to seek remedies in the federal court notwithstanding the state court injunction on enforcement at the state level. The additional state remedy found in 42 U.S.C. § 1857e-5(f) (1973 Supp.) is in reality no remedy at all. This section provides: “Prior to the date on which any stationary source or class of moving sources is required to comply with any requirement of an applicable implementation plan the Governor of the State to which such plan applies may apply to the Administrator to postpone the applicability of such requirement to such source (or class) for not more than one year.” (42 U.S.C. § 1857c-5(f)(l)). Not only is such a “remedy” limited to a one-year extension of time for compliance, but it is within the sole discretion of the Governor to apply for such extension and it is within the sole discretion of the Administrator to approve it. This is hardly a substitute for a mandatory federal consideration of the petitioners’ claims of high cost-benefit, technological infeasibility, and resource unavailability. THE PROCEDURAL REQUIREMENTS Having determined that the claims of the petitioners are relevant under the Clean Air Act Amendments of 1970, and having determined that state procedures were inadequate to protect the interests of the petitioners, the core question in this action remains: At what stage and in what manner are the petitioners’ claims to be considered? The EPA, as an agency of the United States Government, is subject to the provisions of the Administrative Procedure Act (APA, 5 U.S.C. § 500 et seq. (1967)). Section 551 of the APA provides that for the purposes of the Act— “. . . “[Ajgency’■ means each authority of the Government of the United States, whether or not it is within or subject to review by another agency . . . .” The APA establishes procedural requirements for three occasionally overlapping administrative functions: individual adjudication, adjudicatory-type rulemaking, and informal rulemaking. 5 U.S.C. §§ 553, 554 (1967). The petitioners first assert that the action of the Administrator in approving or disapproving the submitted state plans constituted, at the minimum, informal rulemaking. Therefore, they assert, since he did not comply with the requirement of the APA that he permit participation and accept data and other comments from interested parties, his approval of the plan should be vacated and the case remanded with instructions to comply with the APA. We agree. Section 553 of the APA provides in part: “Rule making (c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.” (5 U.S.C. § 553 (1967)). Thus, as a general proposition, administrative rulemaking must permit some public participation in the decision-making, and, in a generalized way, it must articulate its bases and purposes. The Supreme Court, in Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), explained why these basic requirements for administrative rule-making are necessary, stating that without permitting public participation and without developing the record, the administrative agencies would nullify the federal courts’ function of administrative review. The Court stated: “Scrutiny of the facts does not end, however, with the determination that the Secretary has acted within the scope of his statutory authority. Section 706(2) (A) requires a finding that the actual choice made was not ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ 5 U.S.C. § 706(2) (A) (1964 ed., Supp. V). To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Jaffe, supra, at 182. See McBee v. Bomar, 296 F.2d 235, 237 (CA6 1961); In re Josephson, 218 F.2d 174, 182 (CA1 1954); Western Addition Community Organization v. Weaver, 294 F.Supp. 433 (N.D.Cal.1968). See also Wong Wing Hang v. Immigration and Naturalization Serv., 360 F.2d 715, 719 (CA2 1966). Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” (Emphasis added). (401 U.S. at 416, 91 S.Ct. at 824). Similar and closer to the point in this case are the remarks of the Court in Environmental Defense Fund, Inc. v. Environmental Protection Agency, 150 U.S.App.D.C. 348, 465 F.2d 528, 540-541 (1972), wherein the Court had this to say about actions of the Administrator of the EPA: “We recognize that EPA’s functions are difficult and demanding and are impressed by the thoughtfulness and range of EPA’s general approach; nor have we any reason to doubt the wisdom and validity of its specific decisions. But the demand of functions so difficult of decision are accompanied by demands, equally difficult to meet, for attentive consideration and careful exposition. Our own responsibility as a court is as a partner in the overall administrative process — -acting with restraint, but providing supervision. We cannot discharge our role adequately unless we hold EPA to a high standard of articulation. Kennecott Copper Corp. v. EPA, 149 U.S.App.D.C. 231, 462 F.2d 846 (1972).” It has been recognized consistently that without informed judicial review of agency actions, “. . . expertise, the strength of modern government, can become a monster which rules with no practical limits on its discretion.” New York v. United States, 342 U.S. 882, 884, 72 S.Ct. 152, 153, 96 L.Ed. 662 (1951) (dissenting opinion), quoted in Burlington Truck Lines v. United States, 371 U.S. 156, 167, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962). The Administrator built no record in •approving or disapproving the state plans. He took no comments, data, or other evidence from interested parties, nor did he articulate the basis for his actions. This failure contravenes the explicit dictates of Section 553 of the APA and renders meaningless the judicial review provisions of Section 706. The approval of the Ohio and Kentucky plans by the Administrator pursuant to 42 U.S.C. § 1857-5(a)(2) (1973 Supp.) must therefore be deferred until such time as the Administrator complies with Section 553 of the APA. The petitioners may, 'subsequent thereto, attack the actions of the Administrator on the grounds that there was a “clear error of judgment.” Citizens To Preserve Overton Park, Inc. v. Volpe, supra, 401 U.S. at 416, 91 S.Ct. 814. However, as heretofore noted, the petitioners herein do not simply request a remand with instructions to adhere to the informal rulemaking dictates of Section 553 of the APA; they also request a full-scale evidentiary hearing before the Administrator to adjudicate their complex and intricate claims of high cost-benefit, technological infeasibility and resource unavailability. We cannot accept this position. Administrative rulemaking which is to be preceded by extensive hearings where “[a] party is entitled to present his ease or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts . . .” (5 U.S.C. § 556(d) (1967)) is required only when the last sentence of Section 553(c) of the APA applies. This section provides: “When rules are required by statute to be made on the record after opportunity for an agency hearing, sections. 556 and 557 of this title apply instead of this subsection.” (Emphasis added). (5 U.S.C. § 553(c) (1967)). (Sections 556 and 557 of the APA outline the requirements for extensive, adjudicatory-type hearings.) Thus, when a statutory provision directing certain agency action states that such action shall be “made on the record after opportunity for an agency hearing,” then, and only then, is the agency required to have full-scale adjudicatory hearings prior to rulemaking. The Supreme Court has recently considered an argument that an adjudicatory-type rulemaking requirement should apply to agency action even though this type of hearing was not specified in the statute empowering agency action. In United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 756-757, 92 S.Ct. 1941, 1950, 32 L.Ed.2d 453 (1972), a unanimous Court stated: “Appellees claim that the Commission’s procedure here departed from the provisions of 5 U.S.C. §§ 556 and 557 of the Act. Those sections, however, govern a rulemaking proceeding only when 5 U.S.C. § 553 so requires. The latter section, dealing generally with rulemaking, makes applicable the provisions of §§ 556 and 557 only ‘[w]hen rules are required by statute to be made on the record after opportunity for an agency hearing .’ The Esch Act, authorizing the Commission ‘after hearing, on a complaint or upon its own initiative without complaint, [to]' establish reasonable rules, regulations, and practices with respect to car service . . . ,’ 49 U.S.C. § 1(14) (a), does not require that such rules ‘be made on the record.’ 5 U.S.C. § 553. That distinction is determinative for this case. ‘A good deal of significance lies in the fact that some statutes do expressly require determinations on the record.’ 2 K. Davis, Administrative Law Treatise § 13.08, p. 225 (1958). Sections 556 and 557 need be applied ‘only where the agency statute, in addition to providing a hearing, prescribes explicitly that it be “on the record.” ’ Siegel v. Atomic Energy Comm’n, 130 U.S.App.D.C. 307, 400 F.2d 778, 785 (1968); Joseph E. Seagram & Sons Inc. v. Dillon, 120 U.S.App.D.C. 112, 344 F.2d 497, 500 n. 9 (1965). Cf. First National Bank v. First Federal Savings & Loan Assn., 96 U.S.App.D.C. 194, 225 F.2d 33 (1955).” See also, International Harvester Co. v. Ruckelshaus, 478 F.2d 615, at 629 (D.C. Cir.1973), decided Feb. 10, 1973. There is no provision that, in approving or disapproving proposed state pollution-abatement plans pursuant to 42 U. S.C. § 1857c-5(a) (2) (1973 Supp.), the Administrator shall make a determination “on the record after an opportunity for an agency hearing.” Furthermore, when Congress intended that actions of the Administrator of the EPA be preceded by adjudicatory-type hearings it either specifically outlined the type of hearings, (42 U.S.C. § 1857f-5a(c) (1) (1973 Supp.)), or invoked the determination “on the record” provision of 5 U. S.C. § 553(c) (1967). See 42 U.S.C. § 1857c-5(f)(2) (1973 Supp.); 42 U.S.C. § 1857Í-5(b)(2)(B) (1973 Supp.). On these grounds alone we would reject the petitioners’ argument that the Administrator is required to have full-scale adjudicatory-type hearings prior to acceptance of the state plans. There is, however, an additional reason why adjudicatory-type hearings cannot be required of the Administrator prior to approval of state plans. Section 1857c-5(a) (2) provides that within four months of submission of the state plans, the Administrator is required to take final action on all of them. It can hardly be expected that extensive hearings (as outlined in Sections 556 and 557 of the APA) on more than fifty state plans, affecting virtually every pollutant source in the United States, could be held and acted upon rationally within a four months’ period. There remains, of course, an important question: If the petitioners are not entitled to. raise their claims of high cost-benefit, technological infeasibility and resource unavailability prior to the Administrator’s approval of the state plans, at what point can these claims be asserted? The answer is found in 5 U.S.C. § 703 (1967), which provides in part: “Except to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement.” Since we have determined that there could not have been an adequate hearing on individual claims such as those presented by the petitioners herein prior to approval of the state plans, the claims can be asserted as a defense in either federal or state enforcement proceedings. We are cognizant of the language of 42 U.S.C. § 1857h-5(b) (1) and (2) (1973 Supp.), which provides: “A petition for review of the Administrator’s action in approving or promulgating any implementation plan under section 1857c-5 of this title . . . may be filed only in the United States Court of Appeals for the appropriate .... “(2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement.” However, having determined that review of the petitioners’ claims could not have' been obtained under the provisions of paragraph (1) of that section (the approval of state plans), the preclusion of subsection (2) is simply inapposite. THE ENVIRONMENTAL IMPACT STATEMENT The petitioners contend that the Administrator’s approval of the state plans should be held in abeyance until such time as the Administrator files an Environmental Impact Statement pursuant to the National Environmental Policy Act. 42 U.S.C. §§ 4321 to 4347 (1973 Supp.). Essentially, acceptance of this argument would mean that an agency whose sole purpose is the improvement of the environment, would have to file an Environment Impact Statement with itself. See Reorganization Plan No. 3' of 1970, 84 Stat. 2086. We are in accord with the Third, Fourth and D.C. Circuit holdings that such action on the part of the Administrator is unnecessary. Appalachian Power Co. v. Ruckelshaus, 477 F.2d 495 (4th Cir. 1973), No. 72-1733, decided April 11, 1973; International Harvester Co. v. Ruckelshaus, 478 F.2d 615 (D.C.Cir.1973) decided February 10, 1973; Getty Oil Co. (Eastern Operations) v. Ruckelshaus, 467 F.2d 349 (3rd Cir. 1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 (1973). The approval of the state plans by the Administrator is hereby vacated, and the case is remanded to the Agency for compliance with Section 553 of the APA, as articulated in this opinion. . Primary ambient air quality standards were defined as standards which “are requisite to protect the public health.” Secondary ambient air quality standards were defined as standards which are “requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air.” 42 U.S.C. § 1857c-4(b) 1 and 2 (1973 Supp.). . It would seem to us that the court which first acquired jurisdiction of enforcement proceedings would have exclusive jurisdiction to proceed to determine the litigation, and its judgment would be res judicata of the issues litigated. In view of the fact that both federal and state courts aequire jurisdiction by a single Act of Congress, we do not think that Congress ever intended that the parties defendant to enforcement proceedings would be subject to double penalties, i. e., penalties in each jurisdiction. . “Control strategy” is defined in the guidelines as “a combination of measures designated [designed?] to achieve the aggregate reduction of emissions necessary for attainment and maintenance of a national standard . ” (40 C.F.R. § 51.1 (n) (1972)). . The distinction between individual adjudication and rulemaking can become blurred in borderline cases. Administrative adjudication is concerned with the determination of past and present rights and liabilities of parties. Rulemaking, on the other hand, involves the prescription of law to effect broad policy considerations. See American Airlines Co. v. Civil Aeronautics Bd., 123 U.S.App.D.C. 310, 359 F.2d 624, 629 (1966). While rule-making always affects individual rights and liabilities in some measure, a line must be drawn at some point. We have no difficulty in finding that the approval of state plans falls on the rulemaking side of the line even though individual rights will at some time in the future be affected. A contrary finding would mean that every pollutant source in the United States would have to be granted an individual hearing within a four-month period. (This point is discussed subsequently in the body of this opinion.) . In Appalachian Power Co. v. Ruckelshaus, 477 F.2d 495 (4th Cir. 1973), No. 72-1733, decided April 11, 1973, the Court held that the petitioners therein could, at a future date, require the Administrator “to take additional testimony as authorized under Section 1857h-5(e)” on their individual attacks relative to the Administrator’s approval of three state plans. Slip Opinion at p. 28. We disagree with this holding to the extent that it requires extensive adjudicatory-type hearings prior to approval of state plans. Section 1857h-5(c) provides in part: “In any judicial proceeding in which review is sought of a determination under this chapter required to be made on the record after notice and opportunity for hearing, if any party applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the Administrator, the court may order such additional evidence (and evidence in rebuttal thereof) to be taken before the Administrator, in such manner and upon such terms and conditions as to the court may deem proper.” (Emphasis added). Since there is no provision that in ap- proving or disapproving state plans pursuant to 42 U.S.C. § 1857e-5(a) (2) (1973 Supp.) the Administrator shall make a determination “on the record after notice and opportunity for hearing”, the section is inapplicable by its own terms.

St. Marys Cement Inc. v. United States Environmental Protection Agency

OPINION SUTTON, Circuit Judge. The Clean Air Act enlists the States and the United States to improve visibility in the nation’s federal parks and wilderness areas, among other goals. Part of this effort requires factories to add new pollution-limiting technology. One factory faced with this requirement is St. Marys Cement. (More on why St. Marys makes Portland cement but not apostrophes later.) The Michigan Department of Natural Resources and Environment deemed the plant’s pollution controls sufficient and excused St. Marys from the retrofitting requirement. The United States Environmental Protection Agency disagreed and required the plant to add more stringent pollution controls. St. Marys petitions this court to vacate the decision, disclaiming the value of the required technology and claiming that the plant at any rate is exempt from the retrofitting requirement. We disagree on both fronts and deny St. Marys’ petition. I. A. As enacted in 1963, the Clean Air Act sought to reduce the emission of air pollutants that endangered “the public health and welfare.” 42 U.S.C. § 7401®)(1); see Ala. Power Co. v. Costle, 636 F.2d 323, 346-50 (D.C.Cir.1979). In 1977, Congress amended the Act to cover pollution-caused visibility problems in national parks and wilderness areas. See Clean Air Act Amendments of 1977, Pub.L. No. 95-95, § 128, 91 Stat. 685, 742 (codified at 42 U.S.C. §§ 7491(a)(1), 7492(a)). The 1977 Amendments required the EPA to reduce visibility-impairing emissions by adopting nationwide rules that limit the release of relevant pollutants. See 42 U.S.C. § 7491(b). As with other Clean Air Act programs, the States enforce these rules by proposing implementation plans to the EPA for approval. See §§ 7410(a)(2)(J), 7491(b)(2). If a plan satisfies the “applicable requirements ... relating to ... visibility protection,” the EPA will approve it. § 7410(a)(2)(J). If a State’s plan falls short, the EPA must reject it and develop a federal implementation plan in its place. See § 7410(c)(1). The EPA promulgated its first set of visibility regulations in 1980. See Visibility Protection for Federal Class I Areas, 45 Fed.Reg. 80,084 (Dec. 2, 1980) (codified at 40 C.F.R. §§ 51.300-.307). “[Generally,” the Agency found, “two types of air pollution ... reduce or impair visibility”: emissions from pinpoint sources that “obscure the sky or horizon” in the local area, and “widespread” regional haze that “impairs visibility in every direction over a large area.” Id. at 80,085. The 1980 regulations addressed pinpoint sources only, leaving the problem of regional haze for another day. That day came in 1999, when the EPA promulgated the Regional Haze Rule. Regional Haze Regulations, 64 Fed.Reg. 35,-714 (July 1, 1999) (codified at 40 C.F.R. §§ 51.308-.309). The Rule requires the States to determine which facilities within their borders create visibility-impairing pollutants that may “be emitted and transported downwind” to a federal park or wilderness area. Id. at 35,739-40. States then must decide which of those sources are eligible for “Best Available Retrofit Technology,” 40 C.F.R. § 51.308(e), a mouthful that gives some acronyms (here BART) a good name. What is BART? The idea is to put up-to-date pollution controls on older sources of pollution that could not have included the emission controls when the company built the plant. § 51.308(e)(l)(ii)(A). All “stationary. sources of air pollutants” that came “in[to] existence” during a fifteen-year period between 1962 and 1977, the Regional Haze Rule says, are “BART-eligible.” 40 C.F.R. § 51.301; see 42 U.S.C. § 7491(b)(2)(A). A source was “in existence” during that period, the Rule elaborates, if the source’s owner had “obtained all necessary preconstruction approvals” to build the source and had begun “physical on-site construction” of the source or had “entered into binding agreements” to do so before August 1977. 40 C.F.R. § 51.301. Once the States conclude which sources are BART-eligible, they must determine the best available technology for each source. See 40 C.F.R. § 51.308(e). That determination goes into a State implementation plan that the EPA must approve. Id. The EPA uses the notice-and-comment rulemaking process in deciding whether to accept the plan. 42 U.S.C. § 7607(d)(3)(6). Any new required technology must be installed at the owner’s expense. See 40 C.F.R. § 51.308(e)(l)(iv). B. St. Marys Cement Group is based in Ontario, Canada. It is named after the town of its founding, St. Marys, which is blessed with an abundance of limestone and which sits not far from the St. Marys River that separates Canada from Michigan. The company owns several plants that manufacture portland cement, a limestone-based powder that, when mixed with water and rocks, forms concrete. (The apostrophes missing from the names of the company, town, and river warrant a brief digression. In 1898, the Geographic Board of Canada discouraged the possessive form of place names wherever possible, presumably to avoid suggesting private ownership of a public place. If a city kept the possessive, the Board directed it to drop the apostrophe. The Canadian government amended the rule in the 1970s to allow the retention of the apostrophe where it was well established. Some communities today thus use the possessive with their towns and cities, and others do not. St. Marys — the city— had long kept the apostrophe and possessive connotation because the town had dedicated the city to St. Mary. But for reasons of its own it dropped the apostrophe in 1968 and even managed to persuade the cement company to drop the apostrophe from its name as well. See Alan Rayburn, Naming Canada: Stories About Canada Place Names 70-71 (2001). Nor is this a Canadian invention; it may indeed be an American export. In 1890, President Benjamin Harrison established the Board on Geographic Names, which adopted a similar policy and according to one estimate has removed 250,000 apostrophes from federal maps. Barry Newman, Theres a Question Mark Hanging Over the Apostrophes Future, Wall St. J., May 15, 2013, at 1. All of this explains why there is a St. Marys, West Virginia, and a song to go with it. Jim Ruckman, There Ain’t No Apostrophe in St Marys, lyrics available at http://goo.gl/uSkRmy; see also Fowler’s Dictionary of Modem English Usage 58-59 (Jeremy Butterfield ed., 4th ed.2015) (noting that “standard editions of local maps are the best guide to the correct spelling of the hundreds of names of this type”). See generally George R. Stewart, Names on the Land (1945); see more generally Wallace Stegner, Where the Bluebird Sings to the Lemonade Springs 166-71 (Modern Library reprt. ed.2002) (1992) (reviewing Names on the Land).) St. Marys — the company — purchased the cement plant at issue in this case — the one located in Charlevoix, Michigan — in 2005. It was not the first owner of the plant. Medusa Cement had opened the plant in 1967 and had modified it several times over the years. By 2005, when St. Marys acquired the plant, the EPA had already promulgated the Regional Haze Rule. Michigan submitted its initial plan to implement the Rule in 2007, but the EPA rejected the plan in early 2009 — in part because it did not include BART limitations for the Charlevoix plant. Failure to Submit State Implementation Plans, 74 Fed.Reg. 2392, 2393 (Jan. 15, 2009). Michigan responded with an updated plan in 2010, yet the EPA issued a notice in August 2012 that proposed rejecting it .too. Michigan Regional Haze State Implementation Program, 77 Fed.Reg. 46,912 (proposed Aug. 6, 2012) (finalized at 77 Fed. Reg. 71,533 (Dec. 3, 2012)). Michigan’s plan for St. Marys still came up short, the Agency explained, because the State did not require St. Marys to install any new technology to meet BART requirements. The EPA believed that the plant could reduce nitrous oxide emissions — a key visibility — impairing pollutant — through updated controls. The EPA noted in its proposal that it would accept public comments through September 5, 2012. St. Marys submitted two sets of comments. The first challenged the EPA’s proposed standards on technical and scientific grounds. These comments were filed on time. The second set of comments was not. At some point after the comment period ended and after it learned that the EPA planned to reject its first set of comments, St. Marys discovered the Charlevoix plant’s permitting history. When it saw that a 1978 permit included new-source standards, it surmised that the EPA must have treated the former upgrades as reconstructions. If so, that meant it was off the hook because “any emissions unit for which a reconstruction ‘commenced’ after August 7, 1977, is not BART-eligible.” 40 C.F.R. pt. 51, app. Y, § II.A.2. Because construction for the upgrades did not begin until 1978, St. Marys thought that the Charlevoix plant might be exempt. St. Marys met with the EPA in October 2012 about the issue and submitted comments to that end in mid-November. At the company’s request, Michigan also sent a letter to the EPA saying “that the [Charlevoix] facility should not be considered BART-eligible.” App. at 158. The efforts came too late. At the beginning of December, the EPA promulgated a final rule that rejected Michigan’s regional haze plan and promulgated more stringent standards for the Charlevoix plant. 77 Fed.Reg. at 71,547. The Agency acknowledged St. Marys’ late comments and, although it promulgated the rule anyway, agreed to “carefully review” the new comments “and take any action warranted.” Id. at 71,537 n. 1. St. Marys asked the EPA to reconsider its rulemaking, see 42 U.S.C. § 7607(d)(7)(B), and the agency rejected that motion as well on procedural and substantive grounds. II. We start by addressing St. Marys’ challenge to the EPA’s rejection of its first set of comments — the ones filed on time. To reduce the Charlevoix plant’s nitrous oxide emissions, the EPA required St. Marys to install Selective Non-Catalytic Reduction technology. The technology injects ammonia or urea into a plant’s smokestacks, which causes a chemical reaction that reduces nitrous oxide levels. The EPA estimated that the technology would reduce nitrous oxide emissions by fifty percent. St. Marys disputes that estimate. It claims that the EPA all too simply assumed that the technology would work at the Charlevoix facility because that technology had worked at other cement plants. Had the EPA properly used a “case-by-ease” analysis for assessing BART, as it was supposed to, 40 C.F.R. § 51.301, St. Marys believes the EPA would have realized that the plant’s unique characteristics make the new technology ineffective. The EPA’s failure in that regard, St. Marys concludes, makes its final rule invalid. We disagree. Judges are not executive-branch administrators. We do not have authority to implement federal programs. And we do not have authority to set aside rulemaking efforts whenever we disagree with them. Only when a rule is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” may we invalidate it. 42 U.S.C. § 7607(d)(9)(A). This “narrow” standard of review, identical to the one under the Administrative Procedure Act, forbids us from “substitutfing] [our] judgment for that of the agency” and requires the agency only to have “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009); see Catawba Cnty. v. EPA, 571 F.3d 20, 41 (D.C.Cir.2009). No such flaw appears in the EPA’s decision. The agency engaged in case-by-case review, just as the notice-and-comment process anticipated, and proposed that St. Marys install the new technology at the Charlevoix plant for two main reasons. One: St. Marys had successfully used that same technology at one of its other plants. Two: Many EPA-commissioned studies show that this technology effectively reduces nitrous oxide emissions at portlandcement plants. See 77 Fed.Reg. at 46,923-24. As for the proposed fifty-percent nitrous oxide reduction rate, the Agency landed on that number because the Charlevoix plant’s emissions were typical for portland-cement plants and that level' of reduction was typical at similar plants. See id. at 46,924, 71,538. Comments received during the public comment period did not undermine these premises. St. Marys told the EPA that the proposed technology would not work at the Charlevoix plant due to the plant’s unique characteristics. But when the EPA promulgated its final rule, it addressed each of St. Marys’ site-specific objections fairly and in detail. See id. at 71,537-47. When all is said and done, St. Marys’ key complaint, it seems to us, targets the EPA’s technical and scientific views. St. Marys says its own testing shows that the fifty-percent reduction rate is wishful thinking; the EPA says that St. Marys could have met the fifty-percent mark had it tested ammonia rather than urea. St. Marys says that the technology would release too much ammonia into the atmosphere and thus cause a nuisance; the EPA says that other portland-cement plants have remedied that problem. St. Marys says that the technology would plug up the cement-manufacturing process and lead to temporary shutdowns of the plant; the EPA points to “numerous variables that [St. Marys] can adjust and design features it can modify” to avoid those problems. Id. at 71,541. Maybe time will prove St. Marys right on some of these fronts; maybe not. But arbitrary and capricious review does not ask who is right. It asks whether the EPA followed a defensible process in assessing who is right. As to that, it cannot be said that the EPA “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.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). On top of that, we are at our “most deferential” when “reviewing an agency’s scientific determinations” about issues within its expertise, Ky. Res. Council, Inc. v. EPA, 467 F.3d 986, 991 (6th Cir.2006), which assuredly includes an inquiry into how to reduce nitrous oxide emissions by fifty percent at a cement plant. We uphold the EPA’s judgment that this new technology will work effectively at the Charlevoix plant. III. St. Marys does not stop there. It also argues that the Charlevoix plant was never BART-eligible in the first place and thus cannot be subject to the new technology or for that matter any other retrofit emissions controls. St. Marys forfeited that argument, however, by failing to raise it during the public comment period. When a company or individual challenges EPA-promulgated implantation plans, it must comply with the Clean Air Act’s judicial-review provisions. See 42 U.S.C. § 7607(d)(1)(B). One such provision says that “[o]nly an objection to a rule or .procedure which was raised with reasonable specificity during the period for public comment ... may be raised during judicial review.” § 7607(d)(7)(B). A party wishing to raise a new objection after the comment period ends may ask the EPA to reconsider its implementation plan, but the EPA may refuse unless the “objection is of central relevance to the outcome of the rule” and either the objection was “impracticable to raise” within the comment period or the “grounds for ... objection arose after the period for public comment.” Id.; see Nat’l Ass’n of Clean Water Agencies v. EPA 734 F.3d 1115, 1158 (D.C.Cir.2013). If the EPA refuses reconsideration, a party “may seek review of such refusal” in the courts of appeals. 42 U.S.C. § 7607(d)(7)(B). St. Marys concedes that it did not raise its concerns about the plant’s BART-eligibility until after the public comment period closed and after it learned that the EPA was not persuaded by its first set of comments. In its words: “It was not until an October 10, 2012 meeting with the EPA, after the public comment period had closed, that St. Marys realized [the] EPA was intent on imposing much more stringent [emissions] limits. As a result, St. Marys reevaluated its entire strategy and investigated whether the Charlevoix plant was BART-eligible in the first place.” Pet’r Br. at 51-52. Until then, the record contained no argument with “reasonable specificity” that the Charlevoix plant was ineligible for BART. See App. at 427, 456, 476; Nat’l Res. Def. Council v. EPA 559 F.3d 561, 563 (D.C.Cir.2009). That means St. Marys forfeited a direct challenge to the EPA’s rulemaking on the ground that the plant was not BART-eligible in the first place. This one conclusion does not necessarily lead to another — that St. Marys has no recourse. Section 7607 still allows us to review whether the EPA properly refused to reconsider its rule. The problem here is that we do not see how it was “impracticable” for St. Marys to raise its BART objection during the comment period, as the statute requires. 42 U.S.C. § 7607(d)(7)(B). St. Marys had ample opportunities to research the relevant permitting history before and during the public comment period. After all, it owned the plant and could have located the information by searching the plant’s own files or by requesting the Michigan agency to provide them to it (as eventually happened). Nothing about that history “arose” after the comment period, which otherwise would excuse its belated argument. § 7607(d)(7)(B). It arose decades before it, when Michigan first approved the permit. On this record, the Agency did not act arbitrarily or for that matter capriciously when it refused to reconsider its decision. See § 7607(d)(9)(D)®. St. Marys offers several responses, all unconvincing. It first claims that the company may not forfeit arguments with respect to BART eligibility because that issue speaks to the EPA’s “statutory authority” and thus the Agency’s “jurisdiction.” Reply Br. at 21. Section 7607, however, is a claim-processing rule that does not speak to the agency’s or anyone else’s jurisdiction. See' EPA v. EME Homer City Generation, L.P., — U.S. -, 134 S.Ct. 1584, 1602-03, 188 L.Ed.2d 775 (2014). “By the very, terms of the statute[,] [the] timeliness requirement applies to all objections.” Lead Indus. Ass’n, Inc. v. EPA 647 F.2d 1130, 1173 (D.C.Cir. 1980). That all questions concerning an agency’s interpretation of a statute, if pressed by creative lawyers, may “be re-framed as questions about the scope of agencies’ regulatory jurisdiction,” City of Arlington v. FCC, — U.S. -, 133 S.Ct. 1863, 1870, — L.Ed.2d - (2013), does not permit St. Marys to sidestep this requirement. The only question is whether St. Marys may forfeit a challenge to an agency’s reading of a statute that it administers. It may. See Natural Res. Def. Council v. EPA, 571 F.3d 1245, 1259 (D.C.Cir.2009); Cement Kiln Recycling Coal. v. EPA 255 F.3d 855, 860 (D.C.Cir. 2001). Congress is free to require affected parties to submit comments about proposed agency rules during a public comment period and to impose consequences for failing to do so. St. Marys adds that the EPA had an “[independent [d]uty” to consider the Charlevoix plant’s BART-eligibility, no matter whether St. Marys argued the point or not. Pet’r Br. at 46. The premise of the argument is that the EPA has “a duty to examine [its] key assumptions as part of its affirmative burden of promulgating and explaining a nonarbitrary, non-capricious rule.” Natural Res. Def. Council v. EPA 755 F.3d 1010, 1023 (D.C.Cir. 2014). That means it “must justify [such] assumption^ during judicial review] even if no one objects to [them] during the comment period.” Id. The key-assumption exception to the forfeiture rule does not apply here. A first requirement of the exception is that the EPA made an assumption: that it took something for granted or supposed something to be true. See Webster’s Third New International Dictionary 133 (rev. ed.2002). That explains why the EPA would apply the exception to an assumption that state law could not apply to certain Indian-owned lands. See Okla. Dep’t of Envtl. Quality v. EPA 740 F.3d 185, 192 (D.C.Cir.2014). Or why it would apply the exception when “there [was] not one word in the proposed or final rule that explained] why the Agency chose to distinguish” between two sets of regulated entities. See Ne. Md. Waste Disposal Auth. v. EPA 358 F.3d 936, 949 (D.C.Cir. 2004). Or why it would apply the exception when the EPA adopted a predictive model without addressing the soundness of that methodology. Small Refiner Lead Phase-Down Task Force v. EPA 705 F.2d 506, 534-35 (D.C.Cir.1983). Yet the EPA did not assume anything material in this instance. The forfeited point relates to what happened to a specific plant at a specific time in the past. As to that, the EPA relied on record evidence from the Michigan agency that the plant was BART-eligible. Evidence about a point is not an assumption about the point or a supposition about it. It is a standard, everyday factfinding by a decisionmaker based on the record evidence presented by the parties. As an interested party, St. Marys had the right to build that record or to build a different record by submitting other evidence of the plant’s permitting history. At most, one might say that the EPA to some extent relied on the State of Michigan’s decision that St. Marys was BART-eligible. Yet that makes sense. St. Marys did not challenge this premise of the State’s decision, and the Clean Air Act entrusts the States with figuring out which sources must install BART. See 42 U.S.C. § 7491(b)(2), (b)(2)(A). It would seem odd to penalize the EPA for doing the same. Compare this rulemaking with the setting in which the key-assumption doctrine most often applies — the D.C. Circuit’s authority to review (often exclusively) nationwide rules promulgated by federal agencies. To use one example in the clear — air arena: “A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard ... or any other nationally applicable regulations .... may be filed only in the United States Court of Appeals for the District of Columbia.” 42 U.S.C. § 7607(b)(1). The validity of a nationwide rule — and the assurance that it is non-arbitrary — should not turn on the caprice of who happens to challenge it or not challenge it and what arguments are made or not made during the rulemaking process. Those concerns do not apply to a single plant in a single State under a single EPA program, where it is entirely fair to determine the history of a plant based on the record before it, not the record established by the company after the EPA expresses skepticism about the company’s first theory of non-regulation. In the latter setting, our setting, there is no reason to ignore— in truth override — the forfeiture directive established by Congress. St. Marys persists that the EPA excused the forfeiture by placing the late comments on the rulemaking docket and thus into the record for judicial review. Yet the record for judicial review, the Clean Air Act says, consists in part of material that the EPA must place on the docket. See § 7607(d)(4)(B)(i), (d)(7)(A). That does not mean all docketed materials make it into the administrative record. The EPA presumably can docket whatever it wants until the rule is published, § 7607(d)(6)(C), but only “written comments ... received ... during the comment period ” must be docketed and thus become part of the record for our review. § 7607(d)(4)(B)(i) (emphasis added); see § 7607(d)(7)(A). The EPA’s proposed rule for the Charlevoix plant set forth a limited period for affected parties to submit public comments. St. Marys’ objection to the plant’s BART-eligibility determination did not come until after that period ended — indeed until after the EPA had rejected the company’s other objection to the rulemaking. That was too late to preserve the objection. It is forfeited. For these reasons, we deny St. Marys’ petition to vacate the EPA’s final rule.

Riverkeeper, Inc. v. United States Environmental Protection Agency

KATZMANN, Circuit Judge: We here review an environmental regulation designed to protect fish and other wildlife from harm by structures that withdraw cooling water from the nation’s wa-terbodies. For the most part, we find that the regulation promulgated by the Environmental Protection Agency (the “EPA’ or “Agency”) is based on a reasonable interpretation of the applicable statute and sufficiently supported by a factual record, but we must remand one aspect of the regulation that contradicts Congress’s clearly expressed intent. Background Every day, power plants and factories around the nation withdraw more than 279 billion gallons of water to cool their industrial facilities. The pressure from the flow of large volumes of water into these cooling systems traps (“impinges”) larger organisms, like fish, against intake points, or draws (“entrains”) smaller ones, like plankton, eggs, and larvae, into the cooling mechanism, killing- or injuring them. The environmental impact of these systems is staggering: A single power plant might impinge a million adult fish in just a three-week period, or entrain some 3 to 4 billion smaller fish and shellfish in a year, destabilizing wildlife populations in the surrounding ecosystem. Cognizant of this, when Congress amended the Clean Water Act in 1972, it directed the EPA to regulate such “cooling water intake structures” so as to “minimiz[e] adverse environmental impact.” See Clean Water Act § 316(b), 33 U.S.C. § 1326(b) (2000) [hereinafter “CWA”]. The Fourth Circuit remanded the EPA’s first attempt at a regulation under section 316(b) on procedural grounds. See Appalachian Power Co. v. Train, 566 F.2d 451 (4th Cir.1977). After years passed and the Agency had not promulgated a new rule, environmental groups sued and won a consent decree, pursuant to which the EPA agreed to promulgate regulations under section 316(b) by specified deadlines. See Cronin v. Browner, 898 F.Supp. 1052, 1064 (S.D.N.Y.1995). On December 18, 2001, the EPA issued the first phase of regulations pursuant to section 316(b). See National Pollutant Discharge Elimination System: Regulations Addressing Cooling Water Intake Structures for New Facilities; Final Rule, 66 Fed.Reg. 65,255 (Dec. 18, 2001) (codified at 40 C.F.R. pts. 9, 122-25) [hereinafter the “Rule” or “Final Rule”]. The Rule applies to all new facilities (those constructed after promulgation of the Rule) that withdraw more than 2 million gallons of water per day and use at least 25 percent of that water for cooling. 40 C.F.R. § 125.81(a) (2003). Those facilities whose cooling water consumption falls below either of those thresholds will continue to be subject to regulation on the same case-by-case, “best professional judgment” basis that has governed in the Rule’s absence. 40 C.F.R. § 125.80(c). A new facility may comply with the Rule in one of two ways. Under “Track I,” (1) the intake system must either withdraw fewer than 10 million gallons each day or reduce its intake to a level commensurate with a particular technology known as “closed-cycle” cooling, (2) the velocity of water moving through the intake point must be less than or equal to .5 feet per second, (3) the facility cannot withdraw a volume of water that is disproportionate to the size of the waterbody, and (4) the facility must “select and implement [additional] design and construction technologies or operational measures” to minimize impingement mortality and entrainment if the capacity, velocity, and proportionality standards are insufficient. Under Track II, a facility is not bound by the capacity, velocity, or “additional” requirements of Track I (although it must comply with identical proportional flow requirements, see 40 C.F.R. § 125.84(d)(2)). Instead, a facility may take any steps provided it can show, in a demonstration study, “that the technologies employed will reduce the level of adverse environmental impact ... to a comparable level to that which” would be achieved applying Track I’s capacity and velocity requirements. ■ 40 C.F.R. § 125.84(d)(1). The reduction is “comparable” if the facility can show either that its method will yield at least 90 percent of the reduction in impingement mortality and entrainment that Track I would yield or, when considering environmental impacts other than impingement and entrainment, that its method will maintain a level of fish and shellfish in the waterbody that is “substantially similar” to the level that would be achieved under Track I. 40 C.F.R. § 125.86(c)(2)(i)-(ii). Suggested “restoration measures” available under this second approach include restocking killed fish with those bred at a fish hatchery and creating alternative habitats to compensate for organism losses. See Final Rule, 66 Fed.Reg. at 65,280-81. In addition to these requirements, a facility “must comply with any more stringent requirements relating to the location, design, construction, and capacity of a cooling water intake structure or monitoring requirements ... that ... are reasonably necessary to comply with any provision of state law .... ” 40 C.F.R. § 125.84(e); see also id. § 125.89(b)(1)®. The Rule also contains a variance provision. Where “compliance with [a] requirement ... would result in compliance costs wholly out of proportion to the costs the EPA considered in establishing the requirement at issue or would result in significant adverse impacts on” air quality, water resources, or local energy markets, the facility may comply with “less stringent” requirements than either Track I or IPs. 40 C.F.R. § 125.85. Discussion Three petitions are before us. The first, by the self-named Environmental Petitioners, asserts that the Rule conflicts with the Clean Water Act in three ways: (1) Track II sets a lower standard than Track I (and therefore does not reflect the “best technology available”) and otherwise conflicts with the Clean Water Act, (2) the variance provision is precluded by statute, and (3) dry cooling is the best technology available. , On behalf of industry, the Utility Water Act Group (“UWAG”) and the Manufacturers Intake Structure Coalition (“MISC”) advance eight challenges that have four themes: the Rule is insufficiently flexible, the Rule is too vague and malleable, the Rule contradicts the statute, and the Rule is unsupported by the record. The Rule is an “other limitation” that we have jurisdiction to review pursuant to CWA § 509(b)(1), 33 U.S.C. § 1369(b)(1). See Va. Elec. & Power Co. v. Costle, 566 F.2d 446 (4th Cir.1977). Our analysis proceeds in two steps. First, we examine the regulation against the statute that contains the EPA’s charge. If we conclude, after employing standard tools of statutory interpretation, that Congress has “unambiguously expressed” its meaning, that meaning controls. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). “[I]f,” on the other hand, “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute,” which is to say, one that is “reasonable,” not “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 843-44, 104 S.Ct. 2778; accord N.Y. Pub. Interest Research Group v. Whitman, 321 F.3d 316, 324 (2d Cir.2003); Conn. Coastal Fishermen’s Ass’n v. Remington Arms Co., 989 F.2d 1305, 1313-14 (2d Cir.1993). Second, we measure the regulation against the record developed during the rulemak-ing, but we “hold unlawful” the agency’s regulation only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (2000). “Review under this provision is ‘narrow,’ limited to examining the administrative record to determine ‘whether the [agency] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment,’ ” Natural Res. Def. Council, Inc. v. Muszynski, 268 F.3d 91, 97 (2d Cir.2001) (quoting City of New York v. Shalala, 34 F.3d 1161, 1167 (2d Cir.1994)), and in this regard, we acknowledge that we lack the EPA’s expertise when it comes to scientific or technical matters, see Hüls Am. Inc. v. Browner, 83 F.3d 445, 452 (D.C.Cir.1996); New York v. Reilly, 969 F.2d 1147, 1150-51 (D.C.Cir.1992); Ethyl Corp. v. EPA, 541 F.2d 1, 36-37 (D.C.Cir.1976). I. The Statutory Framework The 1972 amendments of the Clean Water Act marked a sea of change in Congress’s efforts “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” CWA § 101(a), 33 U.S.C. § 1251(a). Although those efforts remained focused almost exclusively on what particular “point sources” put into the water, not on the environmental effects of taking water out, we review the entire statutory scheme because its development assists in interpreting the narrow statutory provision before us. Prior to 1972, the Clean Water Act relied on “water quality standards.” If a point source’s discharge reduced the quality of a body of water below a certain standard, that polluter would be liable. This approach was impractical, however, because it was very difficult to prove that a particular polluter was responsible for causing the decrease in water quality. In place of this, the 1972 amendments instruct the EPA to regulate the discharge of pollutants from their source by setting “effluent limitations” based on the leading technology and regardless of the receiving water’s quality. See generally Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1041-42 (D.C.Cir.1978); Bethlehem Steel Corp. v. EPA 538 F.2d 513, 514-15 (2d Cir.1976); Hooker Chems. & Plastics Corp. v. Train, 537 F.2d 620, 623-24 (2d Cir.1976). Those limitations were to become more stringent over time. Beginning in 1977, the EPA was to set “effluent limitations” for existing sources based on “the best practicable control technology currently available.” CWA § 301(b)(1)(A), 33 U.S.C. § 1311(b)(1)(A). By 1989, existing source effluent limitations were to be based on the “best available technology economically achievable,” CWA § 301(b)(2)(A), 33 U.S.C. § 1311(b)(2)(A), which is a “[s]tiffer restriction[ ]” than “best practicable- ... technology,” Hooker, 537 F.2d at 623; accord Weyerhaeuser, 590 F.2d at 1019. Section 306, which applies to new sources, requires the EPA to establish “standards of performance” based on the “best avaib able demonstrated control technology,” tougher standards that reflect the “greatest degree of effluent reduction.” CWA § 306(a)(1), 33 U.S.C. § 1316(a)(1); see Natural Res. Def. Council, Inc. v. U.S. EPA, 822 F.2d 104, 109-10 (D.C.Cir.1987). None of these standards “prescribed a specific design or process in order to meet the requirements of best ... technology^] but instead [the EPA] shall set out effluent limitations which are consistent with such ... technology,” leaving to each facility the burden of meeting those limitations using whatever methods and devices it prefers. H.R.Rep. No. 92-911, at 108 (1972), reprinted in 1 Comm, on Public Works, 93d Cong., A Legislative History of the Water Pollution Control Act Amendments of 1972, at 795 (Comm. Print 1973) [hereinafter Legislative History ]; see also S. Conf. Rep. No. 92-1236, at 128 (1972), reprinted in Legislative History, supra, at 311, U.S.Code Cong. Admin.News 3776. Although the EPA is permitted to consider a technology’s cost in determining whether it is “practicable,” “economically achievable,” or “available,” it should give decreasing weight to expense as facilities have time to plan ahead to meet tougher restrictions. See Tex. Oil & Gas Assoc. v. U.S. EPA, 161 F.3d 923, 936 (5th Cir.1998); Cal. & Hawaiian Sugar Co. v. EPA, 553 F.2d 280, 283 (2d Cir.1977); Am. Iron & Steel Inst. v. EPA, 526 F.2d 1027, 1058-59 (3d Cir.1975); compare CWA § 304(b)(1)(B), 33 U.S.C. § 1314(b)(1)(B) with CWA § 304(b)(2)(B), 33 U.S.C. § 1314(b)(2)(B) and CWA § 306(b)(1)(B), 33 U.S.C. § 1316(b)(1)(B). Section 316(b), which is most relevant to the petitions before us, provides as follows: Any standard established pursuant to section 301 [33 U.S.C. § 1311] or section 306 [33 U.S.C. § 1316] of this Act and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact. CWA § 316(b), 33 U.S.C. § 1326(b). This provision makes clear that administrative regulations under this section are promulgated “pursuant to” both sections 301 and 306 as well as section 316(b). See Va. Elec., 566 F.2d at 450-51; Cronin, 898 F.Supp. at 1059-60. When the EPA “established” new source performance discharge “standard[s]” “pursuant to section ... 306,” it ought then to have regulated new intake structures, because, .by virtue of section 316(b), section 306’s standards “shall require that ... cooling water intake structures reflect the best technology available.” See Cronin, 898 F.Supp. at 1059. That cross-reference is an invitation to look to section 306 for guidance in discerning what factors Congress intended the EPA to consider in determining the “best technology available.” See 118 Cong. Rec. 33,765 (1972) (statement of Rep. Clark) (“[S]ection 316 must be read with other sections in the bill including section 301 effluent limitations ... and section 306, new sources.”), reprinted in Legislative History, supra, at 273. Congress did not, however, choose to include intake structures in those sections of the Act that deal specifically with effluents. Instead, cooling water intake structures are suorum generum, regulated pursuant to a separate — and terse — section concerned more generally with the uniqueness of heat as a pollutant. And in this separate section, no distinction is unambiguously made between new and existing structures: All cooling water intake structures ought to “reflect the best technology available for minimizing adverse environmental impact,” a standard different from those used in sections 301 and 306. That is, however, the only substantive statutory requirement explicitly applicable to intake structure regulations. Effluent limitations and new source standards of performance, by contrast, are subject to a host of statutory provisions that, inter alia, permit or prohibit variances, see, e.g., CWA § 301(c), (l), (n), 33 U.S.C. § 1311(c), (l), (n), require the EPA to distinguish among categories of point sources, see CWA §§ 301(b)(2)(A), 306(b)(1)(B), 33 U.S.C. §§ 1311(b)(2)(A), 1316(b)(1)(B), and limit the frequency with which the EPA can raise the standards applicable to a particular point source, see CWA § 306(d), 33 U.S.C. § 1316(d). Because section 316(b) refers to sections 301 and 306 but provides a different standard (“best technology available for minimizing adverse environmental impact” instead of, for example, “best available demonstrated control technology”) and does not explicitly provide that regulations pursuant to section 316(b) are subject to the requirements of sections 301 and 306, we think it is permissible for the EPA to look to those sections for guidance but to decide that not every statutory directive contained therein is applicable to the Rule. With this background in mind, we turn to the petitions. II. The Environmental Petitioners A. Track II Under the Rule, a new facility has a choice between complying with the velocity and capacity requirements of Track I and implementing alternative technologies (for instance, screens that prevent fish from being entrained) that yield “comparable” results. By “comparable” the Rule means either attaining at least 90 percent of the reduction in impingement mortality and entrainment that Track I would yield or maintaining a “substantially similar” level of wildlife in the water where the intake system is located, as shown by a “[e]om-prehensive [demonstration [s]tudy.” 40 C.F.R. § 125.86(c)(2). The EPA argues that the two-track system — which is a variation on a rule that industry proposed— gives facilities a choice between a “fast track” with easy EPA approval and a more flexible (but more complicated) permitting process. See Final Rule, 66 Fed.Reg. at 65,270-72. The Environmental Petitioners object that Track II violates the Clean Water Act by allowing compliance either with a lower standard than that compelled by the “best technology available” or through “restoration measures” that are unrelated to the “location, design, construction, and capacity of cooling water intake structures” that the EPA is charged with regulating. Moreover, the Environmental Petitioners continue, because either method requires a demonstration study, Track II involves precisely the sort of site-specific, case-by-case determination that Congress moved away from in the 1972 amendments when it chose a national, technology-based standards regime. 1. The 90 percent threshold By requiring a “standard” based on the “best technology available,” the Clean Water Act appears to contemplate a single level of performance applicable to all facilities. The Environmental Petitioners contend that Track II violates this aspect of section 316(b) by allowing facilities to demonstrate only 90 percent of the reduction in impingement and entrainment that Track I would accomplish, instead of requiring an equivalent reduction in impingement and entrainment. The EPA agrees that Tracks I and II must reflect the same standard, but it contends that 10 percent is an acceptable margin of error for measuring reductions in impingement and entrainment. As it wrote in the preamble to the Rule: EPA does not consider this requirement to mandate exactly the same level of reduction in impingement and entrainment as would be achieved under Track I. Rather, given the numerous factors that must be considered to determine the required level of reduction in impingement and entrainment for Track II and the complexity inherent in assessing the level of performance of different control technologies, EPA believes it is appropriate for a new facility following Track II to achieve reductions in impingement and entrainment that are 90 percent or greater of the levels achieved under Track I. Final Rule, 66 Fed.Reg. at 65,279. Measurements of organism impingement and entrainment are necessarily inexact “estimates based on available data as well as certain assumptions.” Id. The EPA can only predict the effect of a proposed Track II approach at a new facility based on empirical results at other facilities, but the data on which the EPA relies in reaching those estimates comes from a variety of sources {e.g., studies at multiple plants using different methods at different periods of time, interviews, on-site visits, literature searches), and the underlying studies themselves contain only estimates of technological performance that is bound to vary according to site-specific conditions. See Eng’g & Analysis Div., U.S. Envtl. Prot. Agency, Technical Development Document for the Final Regulations Addressing Cooling Water Intake Structures for New Facilities, Pub. No. EPA-821-R-01-036, at 5-1 to 5-2, 5-5 (2001) [hereinafter TDD ]. Sampling errors and natural fluctuations in animal populations further skew the results: The number of fish impinged at the same intake points at the same plants, withdrawing the same amount of water at the same speed, will not be equal on any two days, see, e.g., Carole D. Goodyear, U.S. Fish & Wildlife Serv., Evaluar tion of S 16(b) Demonstration: Detroit Edison’s Monroe Power Plant, Admin. Rep. No. 83-3, at 11, 13-16, 28 (1978), and animal populations in the water surrounding the intake point will oscillate from year to year for a variety of reasons unrelated to the intake structure, see Eugene P. Odum, Fundamentals of Ecology 188-95 (3d ed.1971). As a result, when predicting whether one approach will have the same effect in reducing impingement and entrainment as Track I’s capacity and velocity limits, the EPA must necessarily account for all of those variables. The Environmental Petitioners do not contend that 10 percent is an unreasonable margin of error to use in measuring compliance. Rather, they argue that the EPA should not have accounted for any measurement error by adjusting the “underlying standard” to 90 percent. The logic of their position suggests that they would not object if the EPA required “equivalent” (instead of “comparable”) reductions in impingement and entrainment in Track II but indicated elsewhere in the Rule that a facility could demonstrate such equivalence within (plus or minus) 10 percent. The distinction between those two options is lost on us, however, for we discern no significance in the location of the “10 percent” provision in the Rule, or whether the Rule requires “90 percent compliance” instead of allowing a “10 percent margin of error.” We recognize that the EPA, consistent with Congress’s intention that there be a national standard governing the discharge of pollutants, must promulgate precise effluent limitations under sections 301 and 306, for example, 40 milligrams of suspended solids per liter, or 30,000 parts per million of toxic pollutants. See Natural Res. Def. Council, Inc. v. U.S. EPA, 863 F.2d 1420, 1431-32 (9th Cir.1988); Cal. & Hawaiian Sugar, 553 F.2d at 285; Hooker, 537 F.2d at 623-24, 630. But Congress did not intend the EPA to leave industry with only one means of reducing adverse environmental impact, viz. reducing capacity and velocity, just as it did not intend to bind industry’s hand by requiring particular types of effluent reducing technology. Because impingement and entrainment, unlike pollutant concentration and the velocity and volume of water, cannot always be measured directly and with mathematical precision, the use of any alternative technologies would require the EPA to make a judgment call as to whether those technologies yield results “equivalent” to Track I’s. We think it was reasonable for the EPA to make clear in the regulation how much ambiguity it is willing to tolerate in measuring compliance and what it considers a reasonable margin of error in comparing the performance of different technologies. 2. Restoration measures. The other means of complying with Track II is more troubling. A facility may consider “impacts other than impingement mortality and entrainment” provided that “the measures taken will maintain the fish and shellfish in the waterbody at a substantially similar level to that which would be achieved through” the velocity and capacity limits of Track I. 40 C.F.R. § 125.86(c)(2)(ii). Suggested “measures” include restocking fish killed by a cooling water system with those bred in a hatchery or improving the habitat surrounding the intake structure. Final Rule, 66 Fed. Reg. at 65,280-81. Under this approach, it does not matter how many organisms a facility entrains or impinges provided it takes other steps that compensate for those losses in the ecosystem. This is plainly inconsistent with the statute’s text and Congress’s intent in passing the 1972 amendments. Section 316(b) instructs the EPA to “minimiz[e] adverse environmental impact” by regulating the “location, design, construction, and capaeity of cooling water intake structures.” Reclaiming abandoned mines to reduce acid, mine drainage into the waterbody, removing barriers to fish .migration, and creating buffers to reduce destructive runoff from agricultural lands, Final Rule, 66 Fed.Reg. at 65,280, however beneficial to the environment, have nothing to do with the location, the design, the construction, or the capacity of cooling water intake structures, because they are unrelated to the structures themselves. Restoration measures correct for the adverse environmental impacts. of impingement and entrainment; they do not minimize those impacts in the first place. Restoration measures resemble the pre-1972 approach to water pollution, which regulated point sources based on their effect on the surrounding water and allowed sources to discharge pollutants provided the discharge did not cause water quality to dip below an acceptable level. See CPC Int'l Inc. v. Train, 515 F.2d 1032, 1034-35 (8th Cir.1975). Similarly, restoration measures would allow a facility, at least in theory, to impinge and entrain unlimited numbers of organisms provided that other steps maintained acceptable water quality, here measured by wildlife levels as opposed to pollutant concentration. But “[i]t was .... dissatisfaction with water quality standards as a method of pollution control that led to the proposal that they be replaced or supplemented with ‘effluent limitations.’ ” Bethlehem Steel Corp. v. EPA, 538 F.2d 513, 515 (2d Cir.1976). A plaintiff attempting to prove a violation of the Clean Water Act faced “a virtually unbridgeable causal gap,” CPC, 515 F.2d. at 1035, for “the burden of proving that a particular polluter had caused the water quality to dip below the standards was all but impossible to satisfy,” Bethlehem Steel, 538 F.2d at 515. Allowing compliance through restoration measures would involve exactly the same hurdles. As the EPA itself recognized in the preamble to the Rule, [Bjecause of the complexity of biological studies, it is very difficult to assess the cause and effect of cooling water intake structures on ecosystems or on important species within an ecosystem.... [Ujnlike in the laboratory, where conditions are controlled, a multitude of confounding factors make biological studies very difficult to perform and make causation, in particular, difficult to determine. 66 Fed.Reg. at 65,285 (emphasis added); accord id. at 65,314 (“[Rjestoration measures ... require complex and lengthy planning, implementation, and evaluation of the effects of the measures on the populations of aquatic organisms or the ecosystem as a whole.”) We think the EPA’s own findings reveal that restoration measures are inconsistent with Congress’s intent that the “design” of intake structures be regulated directly, based on the best technology available, and without resort in the first instance to water quality measurements. Further textual support that restoration measures are not an acceptable means of minimizing the adverse environmental impact of intake structures lies in section 316(a), 33 U.S.C. § 1326(a), which allows the EPA to vary the heat pollution standards applicable to a point source by considering the particular receiving water-body’s capacity to dissipate the heat and preserve a “balanced, indigenous” wildlife population. This is a notable exception to the Clean Water Act, which, as described above, otherwise relies on limitations on what a source can put into the water, not the ultimate effect of that discharge. See Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1043 (D.C.Cir.1978). That Congress provided for a water quality standards approach to thermal discharges but did not include that approach (or make any reference to it) in the very next subsection, counsels against including restoration measures within the best technology available. Cf. Bates v. United States, 522 U.S. 23, 29-30, 118 S.Ct. 285, 139 L.Ed.2d 215 (1997) (“[Wjhere Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (internal quotation marks omitted)). Finally, although we decline to put much weight on congressional inaction and so-called subsequent legislative history, see Hagen v. Utah, 510 U.S. 399, 418-20, 114 S.Ct. 958, 127 L.Ed.2d 252 (1994), we note that Congress rejected a proposed amendment to section 316(b) that would have explicitly allowed restoration measures. In 1982, the EPA proposed changes that, in the words of the then-deputy administrator, “would allow [existing] dischargers to use measures equal in effect to the best technology available”- — like a “fish hatchery” — -“to mitigate adverse effects.” Clean Water Act Amendments of 1982: Hearings on S. 777 & S. 2652 Before the Subcomm. on Envtl. Pollution of the Comm, on Env’t and Pub. Works, U.S. Senate, 97th Cong., 2d Sess. 113-14 (1982) [hereinafter Hearings ] (testimony of Dr. John W. Hernandez, Jr., EPA Deputy Administrator). The EPA argued that the proposed amendment was necessary because “[t]he existing statutory language is very restrictive in that it authorizes only one option, best technology available, to mitigate such problems.” Id. at 114. Although the EPA is not bound by its prior statutory interpretation, in the absence of any “reasoned analysis” for its change of position, Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), we think the EPA’s prior understanding of its authority under the statute supports our own. Moreover, the fact that the proposed amendment never passed is marginal evidence that Congress rejected the EPA’s request for the very authority it now seeks. Cf. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 561, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (relying on congressional rejection of proposed amendments). Accordingly, we find that the EPA exceeded its authority by allowing compliance with section 316(b) through restoration methods, and we remand that aspect of the Rule. 3. Agency discretion Finally, the Environmental Petitioners argue that Track II gives permit writers unbridled discretion that amounts to a continuation of the best professional judgment standard that has applied in the absence of applicable regulations. Although lodged against both compliance options under Track II, this objection focuses on restoration measures, which we have already determined contradict the plain meaning of the Clean Water Act. We do not believe that permit writers have excessive discretion to determine whether an approach proposed under Track II will achieve at least 90 percent of the reduction in impingement and entrainment that eom-pliance with Track I would yield. Although that determination may be harder to make than one involving judgments about the volume, capacity, and proportionality of water intake, it is no more discretionary. Accordingly, we reject this aspect of the Environmental Petitioners’ appeal. B. Variances The Rule provides that “[a]ny interested person may request that alternative requirements less stringent than those specified ... be imposed in the permit.” 40 C.F.R. § 125.85(a). Such alternative requirements may be imposed: only if ... data specific to the facility indicate that compliance with the requirement at issue would result in compliance costs wholly out of proportion to the costs EPA considered in establishing the requirement at issue or would result in significant adverse impacts on local air quality, significant adverse impacts on local water resources other than impingement or entrainment, or significant adverse impacts on local energy markets. Id. § 125.85(a)(2). The Environmental Petitioners argue that this exceeds the EPA’s authority under the Clean Water Act, which authorizes variances only for existing facilities. We disagree. Certain provisions of the Clean Water Act explicitly provide for variances. Section 316(a), discussed supra, is a variance provision. And section 301(c) allows the EPA to modify the requirements of section 301(b)(2)(A) (the 1989 effluent limitations) upon a showing that the modified requirements represent the “maximum use of technology within the economic capability of the owner or operator.” 33 U.S.C. § 1311(c); see also CWA § 301(g), 33 U.S.C. § 1311(g) (allowing modifications of effluent limitations on nonconventional pollutants); CWA § 301(n), 33 U.S.C. § 1311(n) (allowing alternative effluent limitations to account for “fundamentally different ... factors” from those the EPA considered in its rulemaking). Section 306, by contrast with section 301, does not mention variances from new source performance standards. That omission is presumably meaningful, see Bates, 522 U.S. at 29-30, 118 S.Ct. 285, and the legislative history of the provision suggests that Congress made a deliberate choice not to allow variances for new sources. When the Fourth Circuit ruled that the EPA had to create some form of “escape mechanism” from new source performance. standards, the Supreme Court reversed, remarking that “a variance provision would be inappropriate in a standard that was intended to [e]nsure national uniformity and ‘maximum feasible control of new sources.’ ” E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 138, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977). The EPÁ all but concedes that it would have no authority to allow variances from new source performance standards established under section 306 alone, Final Rule, 66 Fed.Reg. at 65,322 col. 2, but it points out that the Rule is promulgated under both section 306 and section 316(b). Because section 316(b) is silent as to variances (or, in the alternative, because it invokes sections 301 and 306 without distinguishing the standard applicable to new and existing cooling water intake structures), the EPA argues that the statute is ambiguous, and therefore its variance,provision is permissible in light of other variance provisions that, have been upheld by courts in the absence of explicit statutory authority. See, e.g., E.I. du Pont, 430 U.S. at 128, 97 S.Ct. 965 (upholding variance provision applicable to 1977 -effluent limitations in the absence of statutory authority); Natural Res. Def. Council, Inc. v. EPA, 537 F.2d 642, 646-47 (2d Cir.1976) (upholding variance provision in effluent limitations promulgated pursuant to sections 301 and 304). This is a reasonable interpretation of the statute. Because sections 301 and 306 both deal with'discharges, the omission of a variance provision from the latter, especially in light of legislative history suggesting it was deliberate, is equivalent to a spoken limitation • on the EPA’s authority to grant variances from new source performance standards. But intake structures are in a class by themselves, and, as we mentioned at the outset, although the Rule is in some sense promulgated pursuant to section 306, not all of section 306’s various statutory requirements are applicable to regulations under, section. 316. Section 316(b)’s silence with respect to variances does not, therefore, equal an unambiguous prohibition. In the absence of such a statutory bar, we think, consistent with precedent, that it is reasonable for the EPA to allow variances from regulations promulgated pursuant to section 316(b), for “a regulatory system which allows flexibility, and a lessening of firm proscriptions in a proper case, can lend strength to the system as a whole.” Natural Res. Def. Council, Inc. v. EPA, 537 F.2d at 647 (internal quotation marks omitted). Unlike the variance provision remanded in Natural Res. Def Council, Inc. v. U.S. EPA 863 F.2d 1420 (9th Cir.1988), § 125.85 does not leave alternative requirements to the Agency’s “unfettered” discretion. Id. at 1432. Less stringent requirements may be set only where the particular facility faces disproportional compliance costs or the challenged requirements will have “significant adverse impacts” on air quality, water resources, or energy markets — the very same factors the EPA evaluated in identifying the “best technology available” — and the alternative requirements can be “no less stringent than justified” by those costs or impacts. 40 C.F.R. § 125.85(a)(2)-(3). We think this variance provision guides the permitting authority to consider appropriate factors and allows relaxation of the Rule’s uniform technology requirements only insofar as necessary to account for unusual circumstances not considered by the Agency during its rulemaking. Accordingly, we uphold the variance provision of the Rule. C. Dry cooling Finally, the Environmental Petitioners and amici curiae contend that dry cooling is the best technology available for minimizing adverse environmental impact, because it requires the least amount of water and thereby minimizes impingement and entrainment. The EPA acknowledges that dry cooling “virtually eliminated the need for cooling water” and “dramatically reduces impingement and entrainment.” Final Rule, 66 Fed.Reg. at 65,284 col. 1. Nevertheless, the EPA concluded that closed-cycle wet cooling represented the “best technology available” because: (1) dry cooling costs more than ten times as much per year as closed-cycle wet cooling, but it is estimated to reduce water intake by only an additional 5 percent relative to once-through cooling; (2) dry cooling requires more energy and as a result yields more undesirable air emissions; (3) the costs of dry cooling would pose a barrier to entry for some facilities and discourage the construction of new facilities, which are generally better for the environment than existing facilities; (4) dry cooling is far less effective in warmer climates; and (5) dry cooling is not technically feasible for manufacturers and some types of power plants. Environmental Petitioners and amici argue that because section 316(b) does not mention cost or other factors, the EPA cannot give them any weight in deciding what the “best technology available” is, and even if the EPA was permitted to consider those factors, it abused its discretion in weighing them. It is true that section 316(b) itself is silent as to what factors the EPA should consider. But just as its cross-reference to section 306 implicates section 306’s deadlines for setting new source performance standards, see Cronin, 898 F.Supp. at 1059, so, too, does it suggest that the EPA may consider factors involved in setting discharge limits when regulating intake structures. And in setting new source performance standards, section 306 directs that “the Administrator shall take into consideration the cost of achieving such effluent reduction, and any non-water quality environmental impact and energy requirements.” CWA § 306(b)(1)(B), 33 U.S.C. § 1316(b)(1)(B). Accordingly, we think the EPA was permitted to consider cost and energy efficiency in determining the “best technology available.” Having decided that the EPA properly considered those factors, our review becomes more deferential. “[A]ppellate courts give EPA considerable discretion to weigh and balance the various factors required by statute to set [new source performance standards].” Nat’l Wildlife Fed’n v. EPA 286 F.3d 554, 570 (D.C.Cir.2002). “The CWA does not state what weight should be accorded to the relevant factors; rather, the Act gives EPA the discretion to make those determinations.” BP Exploration & Oil, Inc. v. U.S. EPA, 66 F.3d 784, 802 (6th Cir.1995); accord Weyerhaeuser, 590 F.2d at 1045 (“[O]ur scrutiny of the Agency’s treatment of the several consideration factors seeks to assure that the Agency informed itself ás to their magnitude, and reached its own express and considered conclusion about their bearing.”). “If any entity has the ability to weigh the relative impact of two different environmental harms, it is the EPA.” BP Exploration, 66 F.3d at 802. With respect to costs, “the Administrator must inquire into the initial and annual costs of applying the technology and make an affirmative determination that those costs can be reasonably borne by the industry.” Chem. Mfrs. Ass’n v. EPA 870 F.2d 177, 262 (5th Cir.1989). Environmental Petitioners contend that any concerns about feasibility should have been addressed through separate regulations aimed at different industries, but they concede that the EPA had the authority to promulgate “a free-standing, overarching regulation that applies to all categories of point sources subject to [sjections 301 and 306.” Envtl. Pets. Br. at 26-27. If that is so, and we think it is, then the EPA was entitled to consider feasibility generally. Environmental Petitioners also argue that the increases in energy consumption and emissions are de minimis and that the EPA simply gave too much weight to cost, given the significant improvement that dry cooling represents over closed-cycle cooling. 'This Court is not well equipped, however, to meaningfully weigh a 95 percent reduction in entrainment against .027 percent of new generating capacity, 300 pounds of mercury, and $443 million dollars. It is certainly true that dry cooling is an available technology, at least in some regions and industries, and it is better than closed-cycle cooling at reducing impingement and entrainment (since it virtually eliminates water intake), but the Clean Water Act allows the EPA to make a choice among alternatives based on more than impingement and entrainment. From the record before us, we cannot say that the EPA’s choice of closed-cycle cooling as the “best technology available” was unsupported by the record, or that “there has been a clear error of judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). III. The Industry Petitioners We turn now to the petitions filed by UWAG and MISC on behalf of industry,all aspects of which we reject. A. The EPA’s focus on impingement and entrainment UWAG first argues that the “EPA [arbitrarily [ajssumed that [a]ll [[Impingement and [e]ntrainment [a]re ‘[a]dverse.’ ” UWAG Br. at 14. After all, the industry group argues, many species are “nui-sancefs]” that we are better off “eradicating],” and some species respond to “losses” -by increasing their reproduction to compensate. Id. at 15. “Some intake structures, especially in winter, remove fish that were dead or dying even before they reached the intake,” id., and “thriving fish populations” in cooling ponds show that some organisms survive entrainment, id. at 15-16. Because “removing large numbers of fish or eggs is not, by itself, an ‘adverse impact,’ ” the EPA should only have sought to regulate impingement and entrainment where they have deleterious effects on the overall fish and shellfish populations in the ecosystem, which can only be determined through a case-by-case, site-specific regulatory regime. Id. at 16. Furthermore, by focusing on impingement and entrainment, the EPA ignored other adverse environmental impacts and failed to consider whether its regulations will yield a net environmental benefit. We think that the EPA’s focus on the number of organisms killed or injured'by cooling water intake structures is eminently reasonable. See Final Rule, 66 Fed. Reg. at 65,262-63, 65,292. As discussed above with respect to restoration measures, Congress rejected a regulatory approach that relies on water quality standards, which is essentially what UWAG urges here in focusing on fish populations and consequential environmental harm. As for other environmental impacts, UWAG does not attempt to demonstrate what the EPA overlooked, except through vague and speculative references to “local air quality, water resources, [and] energy markets” (which, as noted in the discussion of dry cooling, supra, the EPA did consider) and the suggestion that closed-cycle cooling may require increased land use and have undesirable “aesthetic” impacts. UWAG Br. at 20. The EPA considered all of the factors that UWAG now raises, and we are inclined to defer to the EPA’s judgment of how best to define and minimize “adverse environmental impact.” See Nat’l Wildlife Fed’n, 286 F.3d at 570; BP Exploration, 66 F.3d at 802. B. Additional design, construction, and operational requirements Having argued that the Rule fails to accommodate site-specific conditions, UWAG apparently reverses course to challenge the additional design, construction, and operational requirements of § 125.84(b)(4)-(5), (c)(3)-(4) (which involve site-specific evaluations of each new facility to determine whether measures are needed beyond the capacity, velocity, and proportionality limits of Track I to minimize impingement and entrainment), contending they are “vague in the extreme, inconsistent with EPA’s stated rationale for the regulation (clarity, consistency in decisionmaking, and lessened regulatory burdens), and unsupported by the record.” UWAG Br. at 23. UWAG argues that phrases like “species of concern” and “unacceptable stress” are too vague to inform facilities what will be required during the permitting process, that the EPA lacks the statutory authority to regulate “operational measures” (like temporary facility shutdowns, flow reductions, or maintenance procedures), and that there is insufficient evidence in the record to show that the velocity and capacity limitations of Track I are inadequate to minimize impingement and entrainment or to prove that the benefits of the additional requirements will exceed their costs. The EPA concluded that the capacity, velocity, and proportionality requirements of Track I are not enough to “minimize adverse environmental impact” if a new facility chooses to locate in particular areas where fish and shellfish require additional protection, for example, in the habitat of endangered, commercial, or sport species. See Final Rule, 66 Fed.Reg. at 65,275. Additional technologies, like intake screens, “fish buckets,” and “spray wash systems” can prevent organisms from entering the intake system or maximize the survival of impinged or entrained organisms, but their effectiveness varies with a host of factors that are site-specific, like water currents, the amount of debris near the intake, and the velocity of water as it enters the system. See id. at 65,275, 65,-279; Public Comment & Response No. 068.109 at 1388. Accordingly, the EPA did not establish a national performance standard based on those technologies, preferring instead to require the new facility to research and implement the technologies appropriate to its design and location as part of the permitting process. A new facility can obtain its first permit without approval of its additional design and construction technologies, although the EPA encourages applicants “to engage in a dialogue” with the permitting authority as to whether and what kinds of additional technologies are appropriate, and, in any event, the permitting authority must approve the choice of technologies (or lack thereof) during any subsequent re-permitting process. 40 C.F.R. § 125.89(a)(2), (b)(1)®; Final Rule, 66 Fed.Reg. at 65,276 col. 1. The EPA chose this approach to balance the desire for an efficient “fast track” permitting process with the need to minimize impingement and entrainment at each new facility. Final Rule, 66 Fed.Reg. at 65,276 col. 1. The EPA concluded that additional -technologies can further reduce impingement and entrainment in certain circumstances. We have no license to question that factual finding, which lies well within the realm of the EPA’s expertise. Therefore, requiring those technologies is consistent with the statutory mandate to “minimize adverse environmental- impact.” Although UWAG asserts that individual facilities will have “no idea-what is required,” UWAG Br. at 23, we think the words “minimize,” “impingement,” and “entrainment” are sufficiently clear that, together with the extensive list of suggested technologies, even the industry will be able to understand its responsibilities under the Rule, although, as the Rule itself foresees, the precise requirements. can only be determined during the permitting process (in much the same way that regulation of cooling water intake systems has proceeded in the absence of the Rule). Nothing in the Clean Water Act prevents the EPA from retaining a case-by-case approach to certain environmental problems, however. See Nat’l Wildlife Fed’n, 286 F.3d at 566-67 (upholding the EPA’s decision to regulate color pollution on a case-by-case basis during the permitting process). We also think the statute allows the EPA to regulate the operation of cooling water intake structures, as the word “design” can reasonably be read to embrace the -methods used in running a structure as well as its physical layout and technical specifications. Finally, the EPA did consider at least some of the suggested technologies and found that they are economically practicable, see Final Rule, 66 Fed.Reg. at 65,275 col. 2; TDD, supra, at 2-3, 2-26 to 2-56, which is all the statute requires, see Nat’l Wildlife Fed’n, 286 F.3d at 570 (noting that section 306 only obligates the EPA to consider cost, not to conduct a cost-benefit analysis). Accordingly, the EPA’s decision to regulate some aspects of cooling water intake structures on a site-specific basis is within its authority and reasonable. C. Intake velocity UWAG argues that there is insufficient support in the record for Track I’s through-screen velocity limit of .5 ft/s. See 40 C.F.R. § 125.84(b)(2), (c)(1). “Through-screen velocity,” as its name implies, is the velocity of water at the point it moves through an intake point. The velocity of water a short distance away from the intake point (the “approach velocity”) increases as the same quantity of water is forced (because of screens or other devices that take up space) to flow through a smaller surface area. The record reveals that the higher the velocity of the water moving into an intake system, the-greater the pressure on organisms near the intake point, and the more of them that will be impinged and entrained. See Public Comment & Response No. 014.018, at 1437-38. Ninety-six percent of surveyed fish species can swim faster than .5 ft/s, however, meaning they can escape an intake structure that withdraws water at that velocity (or slower). Notice of Data Availability, 66 Fed.Reg. 28,853, 28,-864 col. 3 (May 25, 2001) [hereinafter NOD A], A survey of facilities constructed in the last 15 years demonstrates that most subject to the Rule already comply with the .5 ft/s through-screen requirement. UWAG argues that the relevant velocity is the “approach velocity,” “because that is what the fish experience before they are swept into the intake, when they may still be able to escape.” UWAG Br. at 32. Basing the regulation on the through-screen velocity allegedly adds an unnecessary measure of stringency to the regulation. The EPA responds that it chose a through-screen velocity limit (and not an approach velocity) as the appropriate measure because through-screen velocity is easier to measure accurately, many recently constructed facilities are designed to meet through-screen velocity limits, and it provides a margin of safety, as the actual through-screen velocity will only increase as a screen becomes occluded by debris and the area through which water can pass is further reduced. The fact that a minority of facilities do not presently meet this requirement, of course, says nothing about whether the required technology is the “best” or “available.” Accordingly, we think the EPA’s choice of velocity limit was reasonable. D. Proportional flow requirements UWAG contends that the proportional flow limitations of the Rule are not supported by the record. The Rule forbids an intake structure from withdrawing more than 5 percent of the annual flow of a river or stream, more than 1 percent of the volume of water within one tidal excursion of an intake located in an estuary or tidal river, or so much water that it disturbs the “natural thermal stratification” of a lake or reservoir (unless such disruption is beneficial). See 40 C.F.R. § 125.84(b)(3), (c)(2), (d)(2). UWAG contends that these limits are redundant (given the capacity limits), rest on an unsupported assumption (that withdrawing a certain percentage of water means withdrawing an equivalent percentage of larvae and eggs), are arbitrary (as there is no basis for choosing 1 or 5 percent, instead of, say, .5 or 6 percent), effectively “zone out” lakes and reservoirs from the available waterbodies (because any withdrawal of water necessarily disrupts, at least to some extent, natural thermal stratification), are not technologically or logistically feasible, and were chosen without appropriate regard for their cost. We do not think the EPA acted arbitrarily or capriciously. See Final Rule, 66 Fed.Reg. at 65,276-77, 65,281, 65,301 (justifying the provision). Absolute capacity limits do not protect smaller waterbodies from the deleterious effects of disproportionate withdrawals. Withdrawing too large a volume of water “might ... change the physical character of the affected reach of the river and availability of suitable habitat,” id. at 65,277 col. 2, and disrupting the natural thermal stratification also affects the balance of nutrients and oxygen, which, in turn, can affect fish migration and spawning, id.; Public Comment & Response No. 068.078 at 1310-11. Because the number of entrained organisms is “closely linked to the amount of water passing through the intake structure,” it was reasonable for the EPA to use the percentage of water as a rough proxy for the percentage of organisms entrained. Final Rule, 66 Fed.Reg. at 65,277 col. 2. The 5 and 1 percent figures were chosen based on the EPA’s conclusion that they are “overwhelmingly achievable” for new facilities, which have the ability to choose their locations: 90 percent of existing facilities in rivers and streams, 92 percent of existing facilities in estuaries or tidal rivers, and “most” facilities in lakes and reservoirs already meet the relevant requirements. Id. The EPA specifically considered cost and found that the means to comply with those limits are “economically practicable for the industry as a whole,” Public Comment & Response No. 068.076 at 1305, and UWAG has offered nothing but speculation to the contrary. The EPA recognizes that choosing the precise limits (1 percent, 5 percent, 1 tidal excursion) involves a matter of judgment, but we see no reason to supplant the industry’s judgment for the EPA’s or to remand a logical aspect of the Rule merely because it involves an element of educated guessing. E. State law requirements Both UWAG and MISC contend that the Rule illegitimately imposes additional requirements as a means of ensuring compliance with state law. The National Pollution Discharge Elimination System (NPDES) is the permitting process through which the requirements of the Clean Water Act (and its progeny of regulations) are enforced at each point source. Under the Act, the EPA is the default permitting agency, although the statute allows states to implement their own permitting programs (subject to EPA approval). See CWA § 402(b), 33 U.S.C. § 1342(b); 40 C.F.R. § 123.1(d). Regardless of whether a point source obtains its NPDES permit from a state permitting authority or from the EPA, it must first demonstrate compliance with the cooling water intake structures Rule as part of its application for the permit. See 40 C.F.R. § 125.80(a). The Rule, in turn, provides that a facility “must comply with any more stringent requirements relating to the location, design, construction, and capacity of a cooling water intake structure or monitoring requirements ... reasonably necessary to comply with any provision of state law .... ” 40 C.F.R. § 125.84(e). Accordingly, a cooling water intake structure permit is contingent on compliance with whatever additional requirements the permitting authority (be it a state or the EPA) decides are necessary under state law, notwithstanding otherwise full compliance with federal regulations. MISC and UWAG argue that the EPA lacks any statutory authority to impose requirements in the federal regulation that are based on state law. The Clean Water Act expressly allows states to set standards even higher than the EPA’s: Except as expressly provided ..., nothing in this chapter shall (1) preclude or deny the right of any State ... to adopt or enforce (A) any standard or limitation respecting discharges of pollutants, or (B) any requirement respecting control or abatement of pollution; except that ... such State ... may not adopt or enforce any effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance which is less stringent than the [federal equivalent] .... CWA § 510, 33 U.S.C. § 1370. In a jurisdiction where the EPA is the permitting authority, the state where the point source is located must first certify compliance with the Clean Water Act. See CWA § 401(a)(1), 33 U.S.C. § 1341(a)(1). Pursuant to that same section, the state may impose additional conditions in order to ensure compliance with state law, and those conditions become conditions of the federal permit: Any certification ... shall set forth any ... other limitations[ ] and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with any ... appropriate requirement of State law set forth in such certification, and [such limitations and requirements] shall become a condition on any Federal license or permit subject to the provisions of this section. CWA § 401(d), 33 U.S.C. § 1341(d); see PUD No. 1 of Jefferson County v. Wash. Dept. of Ecology, 511 U.S. 700, 705, 711-13, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994). In jurisdictions where the state is the permitting authority, presumably the state ensures compliance with its own clean water regulations before issuing a permit. Cf. CWA § 510, 33 U.S.C. § 1370. The EPA contends that § 125.84(e) is merely “a reminder to permitting authorities, [be they states or the EPA,] a provision recognizing the authority preserved to states under ... other statutory provisions,” and that by itself it imposes no additional requirements. EPA Br. at 99-100; see also Final Rule, 66 Fed.Reg. at 65,277-78. UWAG argues that this provision nevertheless invites a parade of horri-bles: By including this “reminder” EPA is likely to mislead the states. The “reminder” seems designed to invite states to interpret their water quality standards creatively. Use your imagination, EPA seems to say, and see if you can manufacture intake requirements from water quality standards that speak broadly of protecting fish and wildlife. As such, the “reminder” is really a change to EPA’s water quality standards regulations, but without saying so. This amendment in disguise violates the requirements of fair notice required for changes in the law. UWAG Rep. Br. at 23-24 (citation omitted). We find no inspiration for this fever dream in the regulation, however. The Rule certainly does not “require states to create new requirements,” UWAG Br. at 42, nor does it necessarily allow the EPA to impose requirements not identified by the states themselves in their certifications, contra MISC Rep. Br. at 5-6 n. 7. To the extent the EPA might exceed its statutory authority in some hypothetical permit adjudication, we think such error would be better addressed during the processes established for judicial review of individual permitting decisions. See 33 U.S.C. § 1369(b)(1)(F) (providing for judicial review of EPA permit decisions); 40 C.F.R. § 123.30 (requiring states to provide for judicial review of their permit decisions). MISC argues, in addition, that the EPA failed to provide notice of and an opportunity to comment on this provision before promulgating the Pinal Rule. See 5 U.S.C. § 553(b), (c). The EPA is only required to “fairly apprise interested persons of the subjects and issues” of its rulemaking, however. Nat'l Black Media Coalition v. FCC, 791 F.2d 1016, 1022 (2d Cir.1986) (internal quotation marks omitted). The final rule need only be a “logical outgrowth” of the proposed rule, not an “exact replica” of it. Id. In this case, the proposed rule would have required the permitting authority to “include any more stringent requirements relating to” cooling water intake structures “that are reasonably necessary to ensure attainment of water quality standards,” Proposed Rule, 65 Fed.Reg. 49,059, 49,119 col. 1 (Aug. 10, 2000) [hereinafter Proposed Rule], and it also recognized the ability of the states to promulgate more stringent requirements, including water quality standards, than those required by the rule, id. at 49,115-16. Together, these provisions, as well as the statute itself, “fairly apprised] interested persons” that facilities could be held to as yet unspecified requirements based on more stringent state law standards. Nat'l Black Media Coalition, 791 F.2d at 1022. Having considered the balance of the petitioners’ arguments pertaining to this provision and found them meritless, we find that § 125.84(e) is a reasonable exercise of the EPA’s authority under the Clean Water Act to remind permitting authorities of the relevance of state law. F. Below-threshold structures MISC objects that the EPA lacks the statutory authority to regulate below-threshold structures on a case-by-case, best professional judgment basis, see 40 C.F.R. § 125.80(c), and also that the EPA failed to give proper notice of and an opportunity to comment on this provision. The EPA concluded that smaller facilities are uniquely situated and are better regulated on a case-by-case basis. See Public Comment & Response Nos. 026.009 at 296, 053.017 at 874. The location, design, construction, and capacity of those structures will still reflect the best technology available to them, but the determination of what is “best” and “available” will be made on a case-by-case basis, just as it has for all structures in the absence of the Rule. MISC argues that this regulatory approach to below-threshold structures exceeds the EPA’s authority to regulate through new source standards of performance, as granted by section 316(b), and otherwise contradicts the statute’s provisions with respect to case-by-case regulation. (Notably, MISC does not argue that the EPA’s decision to proceed in this way is arbitrary, capricious, or otherwise unsupported by the record.) We see no textual bar in sections 306 or 316(b) to regulating below-threshold structures on a case-by-case basis. Section 316(b) merely directs the EPA to require every cooling water intake structure subject to regulation under section 306 (which below-threshold structures indisputably are) to reflect the “best technology available.” It does not compel the EPA to regulate either by one overarching regulation, or based on categories of sources (as does section 306), or on a case-by-case basis (which, incidentally, was the tack the EPA took in its first crack at regulations pursuant to section 316(b), see Appalachian Power Co. v. Train, 566 F.2d 451, 454-55 & n. 4 (4th Cir.1977)). Indeed, even section 306 permits the EPA to “distinguish among classes, types, and sizes within categories of new sources for the purpose of establishing such standards.” CWA § 306(b)(2), 33 U.S.C. § 1316(b)(2). Although we recognize that Congress envisioned uniform regulations when it amended the Clean Water Act, other courts have recognized, as Ralph Waldo Emerson did, that a foolish consistency is the hobgoblin of small minds. The Clean Water Act does not forbid the EPA from addressing certain environmental problems on a case-by-ease basis where categorical regulation is not technologically feasible, see Nat’l Wildlife Fed’n, 286 F.3d at 566-67 (upholding the EPA’s decision to regulate color discharges on a case-by-case basis), or when it does not violate the statute’s language and is otherwise consistent with Congress’s overriding goal of improving the quality of the nation’s waters, see Natural Res. Def. Counsel v. EPA 859 F.2d 156, 201-02 (D.C.Cir.1988) (upholding the continued enforcement of best professional judgment permit limits established prior to the promulgation of categorical limitations). It is, of course, true that once the EPA promulgates applicable standards, regulation of those facilities subject to those standards on a best professional judgment basis must cease, Natural Res. Def. Council v. U.S. EPA 859 F.2d at 200, but where the EPA is justified in not regulating uniformly, we see no reason why the EPA should have to avoid all regulation. Given a choice between not regulating below-threshold structures because of technical impracticalities and regulating them on a case-by-case basis, we think the EPA reasonably chose the latter course. As to the notice and comment objection, the proposed Rule requested comment on two alternatives for regulating facilities “not subject to this rule because of the amount of cooling water they use,” one exempting them entirely from regulation under section 316(b), the other providing that such facilities “may be subject to requirements established by permit authorities under CWA section 316(b) on a case-by-case basis.” NODA, 66 Fed.Reg. at 28,854 col. 2. The EPA also indicated that it was inclined to define the scope of the rule according to the percent of water used for cooling purposes, and not only the total volume of water withdrawn. Id. col. 1-2. Although the proposed rule did not explicitly propose regulating high-volume facilities that use only a small percentage of the water they withdraw for cooling (or low-volume facilities that use a high percentage of withdrawn water for cooling) on a case-by-case basis, as the Final Rule does, we think that interested parties who read all of page 28,854 of volume 66 of the Federal Register would have realized that was a fair possibility. G. The re-permitting process MISC argues that the re-permitting process violates the statute by requiring technologies beyond those determined to be the “best technology available” at the time a new facility’s original .permit is granted. The Rule compels the permitting authority, during subsequent permit applications under Track I, to “review the performance of the [additional design and construction] technologies implemented [pursuant to § 125.84(b)(4)-(5), (c)(3)-(4) ] and require additional or different design and construction technologies, if needed to minimize impingement mortality and entrainment of all life stages of fish and shellfish.” 40 C.F.R. § 125.89(b)(1)®. “In addition,” the permitting authority “must consider whether more stringent conditions are reasonably necessary in accordance” with section 125.84(e), the provision concerning more stringent state law requirements. We think this provision, governing re-permitting criteria, is valid for essentially the same reasons we upheld the related provisions that apply to initial permit applications, § 125.84(b)(4)-(5), (c)(3)-(4), (e). See supra Sections III.B, E. If the EPA can require either additional technologies to reduce impingement and entrainment or impose additional conditions based on state law during a facility’s first permit application, nothing in the statute forbids the EPA from re-evaluating these specific requirements, which are set on a case-by-case basis in the first place, during the re-■permitting process. MISC argues that this provision conflicts with section 306(d), in which Congress included a so-called grandfather clause that exempted new facilities meeting existing discharge requirements from any more stringent standards of performance for a maximum period of 10 years. 33 U.S.C. § 1316(d). But just as we decline to apply section 306’s prohibition against variances to regulations promulgated under section 316(b), so, too, do we resist the conclusion that the statute unambiguously compels the EPA to grandfather in new intake structures. In support, we note that section 316(c) contains a grandfather clause that applies only to the thermal discharge component of a modified facility, not to its intake structure. 33 U.S.C. § 1326(e). If Congress intended to grandfather in new or modified intake structures as well as the related point sources that discharge heat, it could have done so in section 316(c). MISC also contends that it lacked notice of and an adequate opportunity to comment on 'this provision of the Final Rule. The Proposed Rule specifically required the permitting authority to evaluate, “before each permit renewal or reissuance,” “the need for additional or more stringent conditions in the permit.” 65 Fed.Reg. at 49,121 col. 3 (proposed § 125.89(b)); see also Proposed Rule, 65 Fed.Reg. at 49,101 col. 1 (providing for review and “verification” of “additional design and construction technologies” during permit reissuánce). Any semantic differences between the proposed rule and the Final Rule could not have prevented an interested party from commenting on the imposition of additional requirements during re-permitting. H. Consistency with a prior regulatory regime Finally, MISC argues that the below-threshold, state-law, and re-permitting aspects of the Rule, all of which require case-by-case determinations, are inexplicably inconsistent with the EPA’s other, older regulations, which make no mention of intake structures. See, e.g., 40 C.F.R. §§ 125.3(c)(2), 122.44. MISC’s argument seems to be that because the EPA has not heretofore regulated intake structures on a case-by-case basis as a condition of granting NPDES permits, it cannot begin doing so now without an explanation. But the EPA has required at least some intake structures to reflect the best technology available to them. See, e.g., Seacoast Anti-Pollution League v. Costle, 597 F.2d 306, 311 (1st Cir.1979); 66 Fed.Reg. at 65,262 col. 1 (describing case-by-case regulation that has existed in the absence of the Rule pursuant to draft guidance). That the EPA has not formalized its approach until the promulgation of this Rule (and may have revised it) seems irrelevant, because rulemaking is the very process by which the Agency gives an explanation for the rules as it wishes to enforce them. ConClusion For the foregoing reasons, Environmental Petitioners’ petition is granted in part and denied in part, UWAG’s and MISC’s petitions are denied in full, and we remand to the EPA those provisions of the Rule that allow compliance through “restoration measures.” . See Federal Water Pollution Control Act Amendments of 1972, Pub.L. No. 92-500, § 2, 86 Stat. 816, 816 (1972). . Consistent with the parties' briefing and the decisions of other courts, we refer to statutory provisions by their section in the Clean Water Act and provide the parallel citation to the United States Code only on first reference or where necessary to avoid confusion. . Phase I concerns cooling water intake structures at new facilities. The EPA will establish regulations applicable to existing facilities during separate rulemakings known as Phases II and III. See Riverkeeper, Inc. v. Whitman, 32 Envtl. L. Rep. (Envtl.L.Inst.) 20,382, No. 93 Civ. 314(AGS), 2001 WL 1505497, at *1 (S.D.N.Y. Nov. 27, 2001). . Except for certain offshore oil and gas facilities. See 40 C.F.R. § 125.81(d) (2003). . Cooling water systems fall into three groups. "Once-through” systems take water in, use it to absorb heat, and return the water to its source at a higher temperature. "Closed-cycle” systems recirculate the water (after allowing it to cool off in a reservoir or tower before being reused) and add water to the system only to replace that which is lost through evaporation. Closed-cycle systems, therefore, withdraw far less water than once-through systems. See James R. May and Maya K. van Rossum, The Quick and the Dead: Fish Entrainment, Entrapment, and the Application of Section 316(b) of the Clean Water Act, 20 Vt. L.Rev. 373, 378-80 (1995). Dry cooling systems, which the EPA considered in formulating the Rule, use air drafts to transfer heat, and, as their name implies, they use little or no water. Final Rule, 66 Fed. Reg. at 65,282. The Rule provides that facilities that withdraw 10 or more million gallons per day must "reduce [their] intake flow, at a minimum, to a level commensurate with that which can be attained by a closed-cycle recirculating cooling water system.” 40 C.F.R. § 125.84(b)(1). Facilities that withdraw between 2 and 10 million gallons per day are not held to that requirement. See 40 C.F.R. § 125.84(c). . If the structure is in a freshwater river or stream, the intake structure cannot withdraw more than 5 percent of the "source water annual mean flow.” 40 C.F.R. § 125.84(b)(3)(i), (c)(2)(i). For structures located in an estuary or tidal river, the total design intake flow over one tidal cycle must be no greater than 1 percent of the volume of the water column within the area. 40 C.F.R. § 125.84(b)(3)(iii), (c)(2)(iii). And for structures in a lake or reservoir, the total intake flow "must not disrupt the natural thermal stratification or turnover pattern” unless such disruption is beneficial. 40 C.F.R. § 125.84(b)(3)(h), (c)(2)(h). Structures located in oceans are not subject to proportional flow requirements. .See generally Final Rule, 66 Fed.Reg. at 65,275-76 (discussing this requirement). All facilities that choose Track I must take additional measures to "minimiz[e] impingement mortality” if: (i) There are threatened or endangered or otherwise protected ... species, or critical habitat for these species, within the hydraulic zone of influence of the cooling water intake structure; or (ii) [Tjhere are migratory and/or sport or commercial species of impingement concern ...; or (iii) [T]he proposed facility, after meeting the technology-based performance requirements ... would still contribute unacceptable stress to the protected species, critical habitat of those species, or species of concern .... 40 C.F.R. § 125.84(b)(4), (c)(3). All facilities that withdraw between 2 and 10 million gallons per day, and that choose not to reduce their intake to levels commensurate with closed-cycle cooling, must take additional measures to minimize entrainment. See id. § 125.84(c)(4). A facility that withdraws 10 million or more gallons per day, and which, therefore, must reduce its intake to levels commensurate with closed-cycle cooling, must, in addition, take further measures to "minimiz[e] entrainment” if: (i) There are threatened or endangered or otherwise protected ... species, or critical habitat for these species, within the hydraulic zone of influence of the cooling water intake structure; or (ii) [Tjhere are or would be undesirable cumulative stressors affecting entrainable life stages of species of concern . .. and ... the proposed facility, after meeting the technology-based performance requirements ... would still contribute unacceptable stress to the protected species, critical habitat of those species, or these species of concern 40 C.F.R. § 125.84(b)(5). . Riverkeeper, Inc., Natural Resources Defense Council, Waterkeeper Alliance, Sound-keeper, Inc., Scenic Hudson, Inc., Save the Bay: People for Narragansett Bay, Friends of Casco Bay, American Littoral Society, Delaware Riverkeeper, Hackensack Riverkeeper, Inc., New York/New Jersey Baykeeper, Santa Monica Baykeeper, San Diego Baykeeper, Cook Inlet Keeper, California Coastkeeper, Columbia Riverkeeper, and Ocean Conservancy, Inc. . A "point source" is "any discernable, confined and discrete conveyance ... from which pollutants are or may be discharged.” CWA § 502(14), 33 U.S.C. § 1362(14). . Although water quality standards are still part of the regulatory scheme, they can only be used to set standards even higher than technology-based effluent limitations. See CWA §§ 301(b)(1)(C), 302(a), 33 U.S.C. §§ 1311(b)(1)(C), 1312(a); EPA v. State Water Res. Control Bd., 426 U.S. 200, 205 n. 12, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). . The original deadline was 1983, but subsequent acts extended that deadline to 1989 and created a separate standard for “conventional” pollutants. See Pub.L. No. 100-4, § 301(a)-(d), 101 Stat. 7, 29-30 (1987) (codified at 33 U.S.C. § 1311 (b)(2)(C)-(F)); Pub.L. No. 95-217, § 42, 91 Stat. 1566, 1582-83 (1977) (codified at 33 U.S.C. § 1311(b)(2)). .Section 316(b) is something of an afterthought, having been added by the conference committee without substantive comment. See S. Conf. Rep. No. 92-1236, at 137 (1972) (repeating the language of the statute without elaboration), reprinted in Legislative History, supra, at 320. Neither the House nor the Senate version of the bill would have specifically regulated cooling water intake structures. See S. 2770, 92d Cong. § 2 at 144-46 (1971) (enacted), reprinted in Legislative History, supra, at 1677-79; H.R. 11,896, 92d Cong. § 2 at 347-49 (1971), reprinted in Legislative History, supra, at 1043-45; Karl R. Rábago, What Comes Out Must Go In: Cooling Water Intakes and the Clean Water Act, 16 Harv. Envtl. L.Rev. 429, 446-56 (1992) (reviewing the legislative history). The only specific reference to section 316(b) in the congressional debates consists of a floor speech by a single representative. See 118 Cong. Rec. 33,762 (1972) (statement of Rep. Clau-sen) (“The reference here to ‘best technology available' is intended to be interpreted to mean the best technology available commercially at an economically practicable cost.''), reprinted in Legislative History, supra, at 264. This paucity of legislative history, when measured against the volumes of drafts and speeches devoted to other aspects of the 1972 amendments, and when combined with the brevity of the provision itself, counsels against imputing much specific intent to Congress beyond the section's words themselves. To the extent the provision is silent on issues to which other sections speak, we hesitate to draw the negative inference that the brevity of section 316(b) reflects an intention to limit the EPA's authority rather than a desire to delegate significant rulemaking authority to the Agency. . In remarking that one standard is applicable to new and existing structures, we stress that this is one reasonable reading of the statutory language. In no way do we mean to predetermine the factors and standard applicable to Phases II and III of the rulemaking. . For example, the EPA must promulgate new source performance standards under section 306 on an industry-by-industiy basis, e.g., “pulp and paper mills,” “meat product and rendering processing,” "steam electric pow-erplants,” and "textile mills.” See CWA § 306(b)(1)(A), (B), 33 U.S.C. § 1316(b)(1)(A), (B). The parties agree, however, that the EPA may promulgate one overarching regulation applicable to all new cooling water intake structures. See Envtl. Pet. Br. at 26-27. . This passage refutes the Environmental Petitioners' allegation that the “measuring error” explanation is a post hoc rationalization for the Rule, contrived for purposes of this appeal. . Based on the EPA’s representation that "90 percent" .compliance is permitted .because of measuring error, EPA Br. at. 52, it would, of course, be inappropriate for the EPA to use 90 percent as a benchmark and allow an additional margin of error in measuring compliance with that benchmark. A facility must aim for 100 percent, and if it falls short within 10 percent, that will be acceptable. It may not, however, aim for 90 percent and achieve only an 89 percent reduction in impingement and entrainment. . The EPA’s proposed amendment would have changed section 316(b) to read as follows: Any standard established pursuant to section 301 of this Act and applicable to a point source shall require (1) that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impacts, or (2) that other equally effective measures be applied either alone, or in combination with best available technology, to minimize adverse environmental impacts. Any standard established pursuant to section 306 of this Act and applicable to a point source shall require that the location, design, construction and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impacts. S. 2652, 97th Cong. § 11(b) at 318-19 (1982). The EPA sought to amend section 316(b) only as it applied to existing structures — arguing that it was “infeasible” or “extremely costly” to require them to comply with the best technology available — but it explicitly avoided amending the standard for new structures. Hearings, supra, at 113. Dr. Hernandez testified that this was "[bjecause new intake structures can be located so as to avoid such problems and improved technology can be more easily incorporated into their design.” Id. at 114. Apparently, after an additional 20 years of technological developments, the EPA has decided that new structures lack that flexibility. . This case is not analogous to one in which an agency, having implemented one regulation, alters it in light of "critical reports” suggesting that it was ineffective at implementing congressional goals. Rust v. Sullivan, 500 U.S. 173, 187, 111 S.Ct 1759, 114 L.Ed.2d 233 (1991). The EPA has always favored restoration measures (at least at existing facilities); the only change consists of the new-found belief in the EPA's authority to include them as an aspect of the best technology available. Nothing in the studies to which the EPA points in defense of this provision, see EPA Br. at 56 & n. 38; Final Rule, 66 Fed.Reg. at 65,262-65, suggests that the statutory language itself has a different plain meaning than it once did (nor could it), nor do the studies themselves demonstrate that restoration measures are more appropriate now than they were in 1982. . Earlier Senate and House versions of section 306 defined "new sources” to include both those that are newly constructed as well as those that are already built but are modified after the promulgation of applicable regulations. See S. 2770, 92d Cong. § 2 at 90-91 (1971), reprinted in Legislative History at 1623-24; H.R. 11896, 92d Cong. § 2 at 294 (1971), reprinted in Legislative History at 990. Those versions also contained a limited variance provision that would have applied only to modified new sources (and not to those that were newly constructed): "Such standards of performance shall apply to all sources within such category, unless, upon application from an owner or operator of any source which as a result of modification is subject to this section, the Administrator determines [that the costs bear no reasonable relationship to the benefits]." S. 2770, 92d Cong. § 2 at 93 (1971) (emphasis added), reprinted in Legislative History at 1626; H.R. 11896, 92d Cong. § 2 at 297 (1971) (emphasis added), reprinted in Legislative History at 993. This variance provision, section 306(b)(1)(C) (and its explicit inclusion of "all sources”) was stricken during conference, when it was decided to remove references to modified sources. See S. Conf. Rep. No. 92-1236, at 128-29 (1972), reprinted in Legislative History, supra, at 311-12. That a variance provision was considered but rejected demonstrates that Congress’s exclusion of one from section 306 was intentional and not the result of mere oversight. And it remains that the only variance provision ever even considered for inclusion in section 306 explicitly excluded truly "new" sources (those constructed after the promulgation of regulations). . For instance, as we discuss infra in Section III.G, the so-called grandfather clause of section 306(d), 33 Ü.S.C. § 1316(d), does not necessarily, apply to regulations promulgated under section 316(b). . Although at one point the EPA wrote that dry cooling is only "three times the cost” of wet cooling, Final Rule, 66 Fed.Reg. at 65,-282 col. 3, it appears that this refers to relative construction costs, see Public Comment & Response No. 206.014 at 1891 ($9.98 million versus $33.4 million). Particular information in the record supports the "ten times” figure with respect to operating costs. See Final Rule, 66 Fed.Reg. at 65,271 col. 2 (estimating that annual compliance costs with dry cooling would be "at least $490 million”); Final Rule, 66 Fed.Reg. at 65,283 col. 1 (annual cost of dry cooling, $490 million, exceeds that of closed-cycle cooling by $443 million). The EPA estimated that dry cooling compliance costs would be more than 4 percent of revenue for the 83 electric generators subject to the rule and more than 10 percent of revenue for 12 of the generators. Final Rule, 66 Fed.Reg. at 65,282 col. 3. . Where a once-through cooling system would hypothetically entrain some 3.65 million organisms per year, closed cycle cooling would entrain about 180,000, and dry cooling would entrain only 6,570 organisms. Public Comment & Response No. 206.012 at 1881-82. This follows from the difference in capacity: closed-cycle wet cooling systems use 96 to 98 percent less fresh water (and 70 to 96 percent less salt water) than similarly situated once-through systems, and dry cooling systems, in turn, use 95 percent less water than closed-cycle systems. Final Rule, 66 Fed.Reg. at 65,273; Public Comment & Response No. 206.012 at 1881. Contrary to Environmental Petitioners, we think it is logical for the EPA to compare the improvements that both dry cooling and closed-cycle cooling offer over once-through cooling. That dry cooling is 95 percent more effective than closed-cycle cooling at eliminating entrainment is certainly relevant, and when noting how much more expensive dry cooling is than closed-cycle cooling, it is only fair to note how much more effective it is as well. But comparing both closed-cycle cooling and diy cooling to the baseline of once-through cooling adds a useful perspective on the marginal benefits of dry cooling. In other words, while it certainly sounds substantial that dry cooling is 95 percent more effective than closed-cycle cooling, it is undeniably relevant that that difference represents a relatively small improvement over closed-cycle cooling at a very significant cost. ."EPA estimates the mean annual performance penalty of a dry cooling system relative to recirculating wet cooling towers at 1.7 and 6.9 percent for combined-cycle and coal-fired facilities, respectively. Peak-summer energy shortfalls for dry cooling towers as compared to wet towers can exceed 2.7 and 9.3 percent for combined cycle and coal-fired facilities, respectively.” Final Rule, 66 Fed.Reg. at 65,-283 col. 2; see also Public Comment & Response No. 206.014 at 1893; TDD, supra, at 3-2. To put this more plainly, dry cooling would consume .05 percent of all new generating capacity in the United States over the next 20 years, and closed-cycle cooling will consume only .027 percent. 66 Fed.Reg. at 65,283; TDD, supra, at 3-4 to 3-5. ."EPA projects for the dry cooling alternative that C02, NOx, S02, and Hg emissions would increase by 8.9 million, 22,300, 47,000, and 300 pounds per year, respectively.” Final Rule, 66 Fed.Reg. at 65,283 col. 3; see TDD, supra, at 3-6 this. 3-7 & 3-8, 3-31 to 3-32. . Final Rule, 66 Fed.Reg. at 65,283 cols. 1-2; Public Comment & Response No. 206.014 at 1893. . Final Rule, 66 Fed.Reg. at 65,283 col. 3. . Final Rule, 66 Fed.Reg. at 65,284 cols. 1-2; Public Comment & Response No. 206.013 at 1884-85. . See, e.g., Public Comment & Response Nos. 062.026 at 1077, 056.012 at 927, 068.100 at 2137-41, 014.019 at 1098-1102. . “Throughout the rulemaking that is now before this Court, UWAG and other commentators urged EPA to retain and refine the long-established site-specific approach UWAG Br. at 11. .The EPA defines minimize as “to reduce to the smallest amount, extent, or degree reasonably possible.” 40 C.F.R. § 125.83; Final Rule, 66 Fed.Reg. at 65,275 col. 3. . By most we mean 73 percent of manufacturing facilities and 62 percent of power plants. NODA, 66 Fed.Reg. at 28,864 col. 3. . UWAG also argues that the velocity limit precludes the use of certain beneficial technologies, like a “velocity cap.” (A “velocity cap” is a flat cover over the top of an intake pipe that redirects the flow of water as it is taken into a system.) The EPA disputes this, and we defer to its judgment, which the record supports. Even if this technological requirement precluded other beneficial technologies, however, we would defer to the EPA's choice between the two, absent compelling evidence undermining that choice, which UWAG has not provided. .Natural thermal stratification is the “naturally-occurring division of a waterbody into horizontal layers of differing densities as a result of variations in temperature at different depths.” 40 C.F.R. § 125.83. . EPA data indicate that tens of thousands of miles of rivers remain available for new facilities under the "5 percent” aspect of the Rule, and 80 percent of the existing facilities in Arizona, California, Nevada, New Mexico, Oklahoma, and Texas withdraw water from sources not regulated by the Clean Water Act (e.g,, groundwater, treated wastewater, municipal water suppliers). Final Rule, 66 Fed. Reg. at 65,281 cols. 1-2. . Although this section refers to the discharge of pollutants, we do not believe that Congress necessarily intended to prevent the states from imposing tougher restrictions on intake structures alone, as that would be an anomalous result. At the very least, Congress's intent is unclear, and we defer to the EPA’s reasonable interpretation in this regard. . We do not here address what would happen where a state provides a certification that includes no additional conditions based on state law, but the EPA attempts to impose them. . For these purposes, facilities that withdraw more than 2 million gallons per day. . Less than 25 percent.

Friends of the Bow v. Thompson

EBEL, Circuit Judge. This case involves a dispute concerning the United States Forest Service’s approval of a timber sale, known as the “Banner Timber Sale,” in the Medicine Bow National Forest. Friends of the Bow (“Friends”), an environmental group, objected to the sale,- and brought suit in the District of Colorado against the Forest Service and the two Forest Service officials who approved the sale. Bighorn Lumber Co., the purchaser of the sale, intervened to defend the sale. Specifically, Friends claims that: (1) approval of the sale was “arbitrary and capricious” under the Administrative Procedures Act; (2) the Forest Service should have conducted a supplemental environmental assessment based on new evidence concerning the forest’s sustainable yield; (3) the Forest Service did not respond specifically to issues raised by Friends in their administrative appeal of the decision, as is required by 5 U.S.C. § 555(e) (1994); and (4) the Forest Service violated 5 U.S.C. § 555(b) (1994) in failing to respond to Friends’ request that the Service prepare a supplemental environmental assessment. The district court granted summary judgment against Friends on all four claims, and Friends now appeals. We have jurisdiction under 28 U.S.C. § 1291 (1994) and affirm. Statutory Background The factual background of this case is best understood in the context of the relevant statutes, as the most relevant facts are the various procedures the United States Forest Service has gone through in attempting to conduct the Banner sale, and the various objections that Friends has made to those procedures based on the relevant statutes. Accordingly, we first set forth the applicable statutory requirements before discussing the factual background of the case. There are three statutes relevant to this appeal: the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321 et seq.; the National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et seq.; and the Administrative Procedure Act. of 1946 (“APA”), 5 U.S.C. § 551 et seq. We will discuss each statute in turn. A. The National Environmental Policy Act NEPA sets forth “a set of ‘action-forcing’ procedures that require that agencies take a ‘hard look’ at environmental consequences.” Robertson v. Methow Valley Citizens’ Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 1845, 104 L.Ed.2d 351 (1989). Importantly, the statute does not impose substantive limits on agency conduct. . Id. Rather, once environmental concerns are “adequately identified and evaluated” by the agency, NEPA places no further constraint on agency actions. Id. The primary procedure that NEPA establishes to ensure that agencies take a “hard look” at the environmental consequence of their actions is the Environmental Impact Statement (“EIS”). An EIS is a detailed statement of the environmental impact of a proposed action, and must be prepared whenever a federal agency proposes a “major Federal action[] significantly affecting the quality of the human environment.” 42 U.S.C. § 4332 (1994). The NEPA makes no mention of Environmental Assessments (“EAs”), which are the documents agencies prepare in preparation for less significant agency actions. However, the Council on Environmental Quality (CEQ) has issued regulations that govern agency decisions regarding whether to prepare an EIS, and those regulations also outline the requirements for preparing an EA. 40 C.F.R. § 1500 et seq. The Supreme Court has stated that these regulations are entitled to “substantial deference.” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 372, 109 S.Ct. 1851, 1858, 104 L.Ed.2d 377 (1989). The CEQ regulations provide that an agency may prepare an EA to determine whether an EIS is necessary. 40 C.F.R. § 1501.4, 1508.9(a) (1996). If the EA indicates that the proposed action will not significantly impact the environment, the agency may make a finding of no significant impact, or “FONSI.” Id. § 1501.4(e). Where a FONSI is made, the agency need not prepare a full EIS. Id. § 1501.4(e); see Park County Resource Council v. United States Dep’t of Agric., 817 F.2d 609, 621 (10th Cir. 1987), overruled in other respects by Village of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970, 973 (10th Cir.1992) (en banc). When an EIS has been prepared for an action, the CEQ regulations encourage the agency to incorporate its conclusions into EAs prepared for all subsequent and smaller actions. 40 C.F.R. § 1502.20 (1996). However, the regulations require agencies formally to supplement the EIS through a Supplemental Environmental Impact Statement (SEIS) only when “[t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns,” id. § 1502.9(c)(l)(i), or when “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” Id. § 1502.9(c)(l)(ii). B. The National Forest Management Act The NFMA requires the United States Forest Service (the “Forest Service” or “USFS”) to develop Land and Resource Management Plans (“Forest Plans”) for the management of National Forests. 16 U.S.C. § 1604(a), (b) (1994). Forest Plans are required to “provide for multiple use and sustained yield of the products and services obtained [from national forests] ...,” and “determine forest management systems [and] harvesting levels” to be maintained on the relevant forest. Id. § 1604(e). Such plans must be revised at least every fifteen years, and must be prepared by an interdisciplinary team. Id. § 1604(f)(5), (f)(3). Additionally, the NFMA requires the Forest Service to limit the sale of timber from each national forest to “a quantity equal to or less than a quantity which can be removed from such forest annually in perpetuity on a sustained-yield basis.” Id. § 1611(a). This figure is known as the forest’s long-term sustained yield capacity (“LTSYC”). The Service is also required to set annual harvest levels, or “allowable sale quantities]” (“ASQs”) based on sustainable yield principles. Id. § 1604(e)(2). In any given year, the Service may exceed the annual ASQ for a particular forest, “so long as the average sale quantities of timber from such national forest over the decade covered by the plan do not exceed such quantity limitation.” Id. § 1611(a). The ASQ may be modified, but only through a revision of the forest plan, with full public participation. Id. § 1604(d). C. The Administrative Procedures Act The APA governs agency procedures in all administrative proceedings. Under the APA, agency functions are characterized as either “rulemakings” or “adjudications.” 5 U.S.C. § 551 (1994) (defining “adjudication” as the formulation of an “order,” and “order” as the “whole or part of a final disposition ... other than rule making but including licensing”). With regard to informal adjudications, i.e., those not conducted on the record after the opportunity for an agency hearing, “interested persons” are entitled to a “brief statement of the grounds for denial” when an agency denies “a written application, petition, or other request ... made in connection with any agency proceeding.” Id. § 555(e). Further, when an interested person makes a request for agency action, the person is entitled to have the agency conclude the matter presented to it “within a reasonable time.” Id. § 555(b). We have held that [t]he statement of grounds [under 5 U.S.C. § 555(e) ] must be sufficiently detailed that the reviewing tribunal can appraise the agency’s determination under the appropriate standards of review____ [T]he statement of grounds must be sufficiently detailed that we can determine whether the [agency] considered the relevant factors and that the choice it made based on those factors is a reasonable one. City of Gillette v. FERC, 737 F.2d 883, 886 (10th Cir.1984). When an interested person objects to agency action, the agency action is typically reviewed under an “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” standard. 5 U.S.C. § 706(2)(A) (1994). Although our “ultimate standard of review [under § 706] is a narrow one,” in determining whether the agency acted in an “arbitrary and capricious manner,” we must ensure that the agency “decision was based on a consideration of the relevant factors” and examine “whether there has been a clear error of judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). Generally, an agency decision will be considered arbitrary and capricious if “the agency had relied on factors which Congress had 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.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). Factual Background The present dispute concerns the Forest Service’s approval of a single timber sale— the Banner sale — in the Medicine Bow National Forest, which is located in Wyoming. Medicine Bow is subject to a forest plan, which was promulgated by the Forest Service in 1985. Consistent with normal agency practice, the Service conducted a programmatic EIS to accompany the forest plan. See Idaho Conservation League v. Mumma, 956 F.2d 1508, 1511-12 (9th Cir.1992) (discussing administrative practice of Forest Service). The forest plan set out broad management goals, guidelines, and standards for the forest. The plan also included a projected timber sale schedule for the years 1986 through 1995. That schedule specifically identified the Banner sale. Forest plans are implemented through individual projects proposed by the Forest Supervisor. See Idaho Conservation League, 956 F.2d at 1512. For each proposed project, the Service prepares an EA, in which the agency considers the environmental implications of each of a range of options for the particular site-specific project. If the EA does not raise significant environmental concerns unique to the site, the Service makes a FONSI and does not complete a full EIS. The EA for the Banner sale was released on March 19,1993. The EA, which was over 100 pages long, evaluated the environmental impacts of various proposed management actions in the Banner area. Specifically, the EA analyzed four alternatives: Alternative 1, under which no action would take place; Alternative 2, which consisted of a 30-unit timber sale, comprising 6.73 million board feet (mmbf), and certain restoration projects; Alternative 3, which consisted of a smaller timber sale, and the same restoration projects; and Alternative 4, which consisted of only the restoration projects. On April 25, 1993, the Forest Supervisor issued a decision notice and FONSI, in which he selected Alternative 2. The eleven page decision listed a number of reasons for choosing Alternative 2 over the other alternatives. One of these reasons was that Alternative 2 offered the highest benefiVcost ratio of the various alternatives. That reason was cited as a “key” reason, along with the explanations that Alternative 2 would enhance commercial timber supply and environmental stability, and was most consistent with the management objectives as outlined in the forest plan. Among the other reasons cited by the Forest Supervisor in selecting Alternative 2 were improved diversity of vegetation and aesthetics in the forest; a general reduction in negative visual effects caused by the contrast between older clear-cuts and the forest area that would be harvested in the Banner sale; enhanced timber supply and economic stability; and improved erosion and sedimentation conditions due to the elimination of approximately 20 miles of existing roads. After an alternative is selected, Forest Service personnel typically “cruise” a project site in preparation for offering the timber sale for bidding. During the “cruise,” the service identifies trees that may not be cut for various technical and environmental reasons, marks the boundaries of the sale, and identifies those trees that may not be cut. In cruising the Banner site prior to sale, the Service determined that Alternative 2 would yield 55% fewer trees for sale on 362 fewer acres than originally anticipated, for a sale offering of 3.1 mmbf. On May 17, 1994, the Forest Service sold the 509-acre Banner sale to intervenor Bighorn Lumber Company. On June 3, 1993, plaintiffs Leila Stanfield and Donald J. Duerr, on behalf of Friends, brought an administrative appeal challenging the Banner sale. The appeal alleged violations of NEPA, the APA and the NFMA. That appeal was rejected by Deputy Regional Forester Tom Thompson, and the Chief of the Forest Service denied discretionary review. Friends then filed suit in the United States District Court for the District of Colorado, claiming that Thompson’s response to the administrative appeal violated 5 U.S.C. § 555(e) (1994). The court ruled in Friends’ favor, and remanded the case to the agency to make a more detailed statement supporting its decision, concluding that no further action should take place concerning the Banner sale until such a statement was produced. On remand, Thompson responded to Friends’ appeal with a longer, more detailed statement explaining the basis for the agency’s decision. The Chief of the Service again denied discretionary review on March 25, 1995, and Friends again brought suit in the district court. On September 23, 1994, while the second administrative appeal of the Banner sale was pending, Friends sent a letter to the Forest Supervisor for Medicine Bow, in which Friends requested a supplemental EA or EIS for the Banner site based on alleged “changed circumstances” and “new information.” The Forest Service did not respond to this letter. However, the Service did prepare a 26-page Supplemental Information Report (SIR), in which it explained its conclusion that no supplemental EA was necessary. The SIR was issued on October 19, 1995, and was submitted to Friends in connection with this litigation. On April 25, 1995, Friends filed an amended complaint, which claimed that Thompson’s decision on remand was still inadequate under 5 U.S.C. § 555(e). Friends further alleged that the Forest Service’s failure to respond to the letter requesting a supplemental EA violated 5 U.S.C. § 555(b), because the Service had not responded within a “reasonable time.” The government filed a motion to require Friends to file a second amended complaint asserting all claims the group intended to assert against the Banner sale, including any challenges to the decision to choose Alternative 2. Friends consented to the motion, and filed a second amended complaint which contained additional claims alleging that the SIR was a supplemental EA which had not been filed in accordance with notice and comment requirements, and that the decision to implement Alternative 2 violated the NFMA because the service did not consider relevant sustained yield considerations. Upon cross-motions for summary judgment, the district court granted the government’s motion on all claims. Friends now appeals. DISCUSSION Standard of Review The district court’s decision to grant summary judgment is reviewed de novo. Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir.1995). However, like the district court, we apply the deferential standards of 5 U.S.C. § 706 in determining whether the agency’s action was arbitrary and capricious. Mountain Side Mobile Estates Partnership v. Secretary of Pious, and Urban Dev., 56 F.3d 1243, 1250 (10th Cir. 1995). I. Was Approval of the Banner Sale “Arbitrary and Capricious” Friends claims that the Forest Service decision approving the Banner sale was arbitrary and capricious in two respects. First, Friends claims that one of the “key” reasons justifying the decision, ie., that Alternative 2 provided the highest benefit/cost ratio, was contrary to the evidence before the agency. Second, Friends claims that the Forest Service completely failed to consider sustainable yield principles, and thus did not “consider an important aspect of the problem.” State Farm, 463 U.S. at 43, 103 S.Ct. at 2866. A. The Evidence Before the Agency The decision to implement Alternative 2 was consistent with the evidence before the Forest Service at the time the decision was made. Friends’ claim is that the alleged higher benefit/cost ratio of Alternative 2 was one of the reasons that alternative was chosen by the Service, and that Alternative 2 did not in fact offer a higher benefit/cost ratio than Alternative 3, which provided for a smaller timber sale. To reach this conclusion, Friends relies on the SIR, which concluded that, after “cruising,” Alternative 2 was marginally less beneficial than the uncruised projected figure for Alternative 3. However, the SIR does not establish substantial changes in the proposed action relevant to environmental concerns, nor does it impugn the decision to select or implement Alternative 2. The SIR only concluded that the ratio for Alternative 2, after cruising, was marginally lower than the pre-cruising estimates for Alternative 3. However, the SIR explained that the Alternative 3 ratios would also likely decrease if cruising were to occur, as Alternative 3 also included a substantial timber sale. Id. Thus, as the district court concluded, Friends is offering figures that are really “apples and oranges.” Accordingly, we conclude Friends has offered no evidence that the decision to implement Alternative 2 was contrary to the evidence before the agency. B. Alleged Failure to Consider Sustained Yield Issues Friends also claims that the Service did not adequately consider sustainable yield principles in deciding to implement Alternative 2, in violation of the NEPA and the NFMA. Thus, Friends contends, the decision was arbitrary and capricious because the agency did not “consider an important aspect of the problem.” State Farm, 463 U.S. at 43, 103 S.Ct. at 2866. We disagree. Although the Service does not contend that either the EA or the implementing order discussed sustainable yield issues, the agency notes that under the NFMA, sustained yield issues are addressed in the forest plan. See 16 U.S.C. § 1604(e)(2), 1611 (1994) (requiring agency to address sustained yield issues in forest plan). As an initial matter, we reject the Service’s contention that plan-level concerns, such as sustainable yield, may not be considered at the time of an individual sale decision. In this case, Friends has alleged that the ASQ estimates contained in the plan may be high, and that the Service is currently in the process of revising the plan. However, Friends has not pointed to anything in the administrative record that indicates the 3.1 mmbf sale proposed here implicates sustainable yield concerns. Under the forest plan, the ASQ for Medicine Bow as a whole is 28.4 mmbf per year and the decadal LTSYC is 807.1 mmbf, or 80.7 mmbf on an annualized basis. In 1994, the year the Banner sale was made, the Service only sold 4.7 mmbf in the Forest. Further, a review of the volume of timber sold from the Medicine Bow National Forest between 1986 and 1995 shows that about 175 mmbf of timber was sold, a total significantly below the 284 mmbf ASQ for the decade. Indeed, even under the conservative sustainable yield figures cited by Friends, under which the forest can sustain only about 7 mmbf of harvesting annually, the Banner sale did not raise a sustainable yield issue. Accordingly, the agency did not act in an arbitrary and capricious manner in declining to call into question the forest plan guidelines by raising sustainable yield issues in the Banner sale process. II. Friends’ Request for a Supplemental EA Friends next argues that the Forest Service violated administrative law principles in refusing to prepare a supplemental EA for the Banner sale. Under the CEQ regulations, an agency must supplement an EIS if “[t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns,” or “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1)(i), (ii) (1996) Forest Service rules mandate that supplemental EAs may issue only after a notice and comment period. As the Supreme Court recognized in Marsh, “an agency need not supplement an EIS every time new information comes to light after the EIS is finalized. To require otherwise would render agency decisionmaking intractable, always awaiting updated information only to find the new information outdated by the time a decision is made.” 490 U.S. at 373, 109 S.Ct. at 1859. Thus, decisions not to supplement an EIS or EA will only be reversed if the agency decision is found to have been arbitrary and capricious. Id. at 376, 109 S.Ct. at 1860. Moreover, questions of whether there has been a substantial change in the action, or whether significant new information or circumstances have come to light, are “classic example[s] of ... factual dispute[s] the resolution of which implicates substantial agency expertise.” Id. at 376, 109 S.Ct. at 1860. The analysis of the relevant information “ ‘requires a high level of technical expertise;’ ” accordingly, “we must defer to ‘the informed discretion of the responsible federal agencies.’” Id. at 377, 109 S.Ct. at 1861 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 2731, 49 L.Ed.2d 576 (1976)). Friends claims that a supplemental EA was required because: (1) the reduction in timber sale volume at the Banner site revealed through the “cruise” was a substantial change in the action; and (2) significant new information has come to light regarding the timber supply in Medicine Bow. We disagree with both claims. First, the 55% reduction in sale volume did not constitute a substantial change in the action relevant to environmental concerns. We note that this change would result in a reduction in environmental impact rather than an increase in environmental impact. Although we are not prepared to say that a reduction in the environmental impact of an action can never trigger a requirement to prepare a supplemental EA, we believe that a reduction in environmental impact is less likely to be considered a substantial change relevant to environmental concerns than would be an increase in the environmental impact. Here, much of the reduction in timber sales volume was the result of implementing the kinds of environmental protections that would normally be expected before cutting begins, such as “cruising.” Further, the SIR supported the Forest Service’s conclusion that Alternative 2 was still the most attractive option even after cruising revealed the 55% decrease in available timber. Although Alternative 2’s benefit/cost ratio after cruising was marginally lower than that of the pre-cruise figures for Alternative 3, the Agency explained that the figures for Alternative 3 would likely be lower if cruising were to occur. This conclusion was informed by the agency’s substantial expertise in this area. Marsh, 490 U.S. at 376, 109 S.Ct. at 1860. Thus, we do not believe it was arbitrary and capricious for the agency to conclude that this was not a substantial change. Nor do we believe the agency was arbitrary and capricious in concluding Friends did not show “significant new circumstances or information” bearing on the environmental implications of the Banner sale. Friends points primarily to the Timber Demand and Supply Study (“TDSS”), an internal Forest Service document prepared by several Forest Service employees for the purpose of assessing timber conditions in Medicine Bow. The TDSS was never completed, and was never formally approved by the agency. Further, the TDSS was not new because it was abandoned by the Service on March 18, 1992, a full year before the EA was released and the Banner sale consummated. Moreover, the Service explained in detail in the SIR why the TDSS did not contain significant information that would warrant a supplemental EA. In declining to follow the conclusions reached in the TDSS, the Service noted that the study had substantial technical defects, including a failure to take into account the fact that, trees grow in assessing the amount of timber that would be available in the future, as well as the fact that the primary purpose of the document was to make a demand assessment rather than a field-based supply assessment. The TDSS is precisely the sort of document the Marsh Court concluded an agency may discount based on its substantial expertise and subsequent consideration of the relevant issues. Marsh, 490 U.S. at 381, 109 S.Ct. at 1863 (noting that SIR in that case had adequately addressed concerns raised by environmental group, and concluding that no supplemental EIS was required). Thus, it was not arbitrary and capricious for the agency to decline to supplement the EA based on the TDSS. III. Forest Service Response to Friends’ Administrative Appeal Friends also contends that, after the district court’s remand of the administrative appeal, Forester Thompson’s second response to the appeal again failed to respond to issues raised in the appeal, in violation of § 555(e) of the APA. As the district court noted in its remand of the initial appeal, our case law mandates that agency decisions be “sufficiently detailed that we can determine whether [the agency] considered the relevant factors and that the choice it made based on those factors was a reasonable one.” Gillette, 737 F.2d at 886. Specifically, Friends contends that Forester Thompson’s appeal decision of January 31, 1995:(1) did not explain why the agency did not follow the recommendations of certain Forest Service personnel; and (2) failed to explain conflicting statements regarding the visual effects of Alternative 2. The district court properly rejected this claim. As an initial matter, we agree with the Forest Service regarding the need to consider the administrative record as a whole in considering whether § 555(e) has been satisfied in the NEPA context. Agency decisions in the environmental context are made against a backdrop of extensive documentation due to the NEPA requirements. The government contends that no circuit court has ever remanded a decision to an agency based on § 555(e) in the NEPA context, and we have been unable to locate any such decisions either. In this context, we agree with the Forest Service that the “brief statement” required by § 555(e) cannot adequately assess the basis for an agency decision, and that such statements should be read in light of previous documents prepared to justify the particular decision at issue. Cf. Estate of L.D. French v. FERC, 603 F.2d 1158, 1162 (5th Cir.1979) (holding that a more “general” statement of basis for agency action is justified where court has before it a fully documented “record which formed the basis for the [agency’s] action”). In this case, the Forest Supervisor’s initial decision, as well as the EA itself, fully addressed the concerns raised by Friends. In any event, we do not believe Friends’ concerns are valid. Friends’ allegation that the Service ignored the opinions of several Forest Service personnel who opposed Alternative 2 does not really raise a distinct issue from that of why Alternative 2 was chosen over the other alternatives generally, an issue discussed in Thompson’s decision, and in the EA and FONSI. In explaining the reason for its choice of Alternative 2, the Service also provided Friends with an adequate explanation as to why it rejected the other alternatives. As to the visual impacts issue, Friends takes out of context one statement that applied to one portion of the Banner sale, and contrasts it with another statement that was applicable to the sale generally. We conclude that Friends has not shown that the Forest Service’s response to its appeal was deficient with respect to visual effects issues. Taken in context, Forester Thompson’s appeal decision of January 31, 1995 provides sufficient detail to satisfy the requirements of § 555(e). IY. Alleged Failure to Respond to Request for Supplemental EA Finally, Friends contends that the Forest Service violated the APA in failing to provide a prompt response to Friends’ September 23, 1994 letter requesting that the Service conduct a supplemental EA for the Banner sale. Friends claims the agency violated § 555(b) of the APA, which requires that the agency, “within a reasonable time ... proceed to conclude a matter presented to it.” The government maintains, and the district court agreed, that Friends’ letter is not the sort of matter to which § 555(b) applies. There is little case law on this issue. However, we believe there is a substantial argument that § 555(b) does apply to Friends’ letter, which is an explicit and eolorably valid request for the Service to take action arguably required of it by law to prepare a supplemental EA. First, by its terms, § 555(b) applies to all “matter[s]” presented to the agency. Contrary to the government’s position that the provision only applies to “proceedings” in which a person is compelled to appear, the section specifically speaks to “agency proceeding^]” in which a person is “entitled to appear,” as well as “agency funetion[s]” and “matter[s],” terms which would appear to encompass all forms of agency action. Second, while the government points out that “agency proceedings” only includes the rulemakings, adjudications, and licens-ings defined in § 551 of the APA, it fails to acknowledge that § 551 defines “adjudication” as “the formulation of an order,” and in turn defines “order” expansively to include the “whole or part of a final disposition ... other than rule making but including licensing.” That section further defines “agency action” broadly to include not only rule makings, licensings, and orders, but also the “failure to act.” Id. § 551(13); see also Catron County v. United States Fish & Wildlife Sen., 75 F.3d 1429, 1434 (10th Cir.1996) (holding that alleged failure to comply with NEPA in designating critical habitat was agency action); Forest Service Handbook § 18.1, 57 Fed.Reg. 43180, 43200 (1992). Thus, we assume, for the purposes of this opinion, that § 555(b) applies to the letter. Nonetheless, even assuming § 555(b) applies to Friends’ letter, the agency’s response to the letter substantially complied with the requirements of the section, as well as with the “brief statement” requirement of § 555(e). Friends does not dispute that the SIR is an adequate “brief statement” of the agency’s reasons for not conducting a supplemental EA. Thus, the only question is whether the SIR was issued within a “reasonable time” as is required by § 555(b). Friends has not pointed to a single ease in which a court has reversed an agency action under § 555(b) for failure to comply with the “reasonable time” requirements. But cf. NLRB v. Mountain Country Food Store, Inc., 931 F.2d 21 (8th Cir.1991) (refusal to enforce stale NLRB order that was delayed six years when circumstances had changed dramatically and it would no longer be equitable to enforce the order). More typically, courts have occasionally granted mandamus to force agencies to act when there has been no response to a request for agency action. See, e.g., Litton Microwave Cooking Prods, v. NLRB, 949 F.2d 249, 253 (8th Cir.1991) (recognizing that mandamus may issue in that situation); Nader v. FCC, 520 F.2d 182, 206 (D.C.Cir.1975) (recognizing authority to compel agency action in same situation). But, in this ease, the agency did act, by issuing the SIR. In cases where agencies acted, courts have declined to overturn agency action on the basis of the delay in situations where the agency took much longer to respond than the approximately one year period at issue here, particularly where as here the party opposing the action benefitted from the delay. See, e.g., NLRB v. Hanna Boys Center, 940 F.2d 1295, 1299 (9th Cir. 1991) (six year delay and party challenging action benefitted from the delay); see also Iñ re City of Virginia Beach, 42 F.3d 881, 885-86 (4th Cir.1994) (refusing to mandamus agency to act despite four year delay in preparing EIS). Accordingly, we conclude the agency acted within a reasonable time in producing the SIR, particularly in light of the lengthy, detailed nature of Friends’ request for action, and the thoroughness of the agency’s eventual response. Finally, we conclude that Friends is not a “prevailing party,” and thus is not entitled to fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412 (1994 & Supp.1997). CONCLUSION For the foregoing reasons, we AFFIRM the decision of the district court. . The SIR did not consider the post-cruising value of Alternative 2 as compared with Alternatives 1 or 4, presumably because the EA found that benefit/cost ratios were inapplicable to those alternatives. . The agency’s position on this matter is particularly untenable in light of its consistent litigating position, in cases involving challenges to forest plans, that forest plans may not be challenged at the planning stage, but rather must be challenged at the time of individual implementation decisions. Wilderness Soc'y v. Alcock, 83 F.3d 386, 390-91 (11th Cir.1996); Idaho Conservation League v. Mumma, 956 F.2d 1508, 1518-19 (9th Cir.1992). We expressly do not address whether a forest plan may he challenged at the time it is adopted, but note merely that the agency’s position that it cannot be challenged at such time strongly suggests that it can be challenged at the time of a particular implementation decision, such as the sale at issue here. . The Forest Service applies these same principles with respect to EA’s, even though the regulations speak only to EIS’s. Forest Service Handbook § 18.4, 57 Fed.Reg. 43180, 43200 (1992). Thus, although the CEQ regulations do not speak to the circumstances in which a supplemental EA should be prepared, both the United States and Friends agree that the standards contained in 40 C.F.R. § 1502.9(c)(1) (1996) apply to supplemental EA's, and the district court assumed that was the case as well. D. Ct. Order at 6 n. 6. . As Alternative 2 was still beneficial after cruising, its benefit/cost ratio continued to exceed those of Alternatives 1 and 4, both of which would have produced no economic benefit. . Friends also points to a variety of alleged "new” information. None of this information is new or significant. The Ron Olsen letter merely summarizes the TDSS, and thus is also not significant. The information concerning riparian areas, soils, and old growth forests does not appear to be new, as those issues were thoroughly discussed in the EA. . The EA stated that Alternative 2 would, as a whole, have positive visual effects, because it would create a more uniform forest. However, the Service noted that in the one portion of the sale involving units 36-39 where 50-70% of trees would be cut, the unaesthetic appearance of some portions of the forest would be exacerbated.

Western States Petroleum Ass'n v. Environmental Protection Agency

TASHIMA, Circuit Judge: Title V of the 1990 Clean Air Act Amendments (Title V), 42 U.S.C. §§ 7601, et. seq., established a new operating permit program to be administered pursuant to rules developed by the states and approved by the Environmental Protection Agency (EPA). The State of Washington submitted for EPA approval a Title Y program that would exempt “insignificant emissions units” (IEUs) from permit application requirements, as well as monitoring, reporting and record-keeping requirements. The EPA granted only interim approval to Washington’s program and conditioned final approval on the repeal of the IEU exemption. We reverse the EPA’s decision as an abuse of discretion because it conflicts substantially with numerous EPA decisions in other states and localities. BACKGROUND Title V instituted a centralized permitting program to be administered by the states subject to EPA oversight. Through the program, all Clean Air Act substantive and procedural requirements applicable to a pollutant emitter are written in the emitter’s operating permit. 42 U.S.C. §§ 7661e(a)-(c). Each permit must include inspection, entry, monitoring, compliance certification, and reporting requirements to assure compliance with the Act. Id. Title V directs the EPA to prescribe procedures for determining compliance, institute requirements for permit applications, and establish the minimum elements of a state permit program (including monitoring and reporting requirements). 42 U.S.C. §§ 7661a(b)(l), 7661a(b)(2), 7661c(b). 40 C.F.R. Part 70 sets forth the regulations that the EPA adopted to implement Title V. The Part 70 regulations set forth the criteria for EPA approval of state permit programs. The EPA has allowed states to exempt insignificant activities and emissions levels from certain requirements in order to reduce the regulatory burdens on emitters. 40 C.F.R. § 70.5(c)(3). Subject to EPA approval, each state determines what activities and emissions levels may qualify as insignificant. 40 C.F.R. § 70.5(c)(3). Pursuant to 42 U.S.C. § 7661a(d)(l), the State of Washington proposed a permit program to the EPA during November 1993. Washington’s program designates a host of emissions as insignificant, e.g., emissions from roof vents, vehicle exhaust from repair shops, and emissions from fire-fighting equipment. Wash.Admin.Code § 173-401-532. Washington’s program exempts IEUs from the permit application requirements of 40 C.F.R. § 70.5. The program also exempts IEUs from the permit compliance requirements of 40 C.F.R. § 70.6, including monitoring, testing, reporting, record-keeping and compliance certification. Wash.Admin.Code § 173-401-530(2)(c). On November 9, 1994, the EPA rejected Washington’s IEU provisions, granting only interim approval to the program. 59 Fed. Reg. 55813 (1994). As a condition to final approval, the EPA required Washington to amend its IEU rules to disqualify any emissions unit subject to federally enforceable applicable requirements. 59 Fed.Reg. 55813, 55814, 55818. The EPA’s interim approval allowed Washington to begin implementing its permit program while addressing the defects identified by the EPA. 40 C.F.R. § 70.4(e)(3). Petitioners, five air pollutant emitters and two trade associations of pollutant emitters, filed a timely petition for judicial review on January 6, 1995. The State of Washington Department of Ecology moved to intervene in support of its program. On July 7, 1995, we granted the EPA’s motion to vacate the portion of its decision that concerned IEUs and specifically retained jurisdiction of this matter. On remand, the EPA adopted a final decision on November 15, 1995. 60 Fed.Reg. 62992, 62993 (1995). The EPA found that Part 70 allows states to exempt IEUs from Title V permit applications (40 C.F.R. § 70.5), but not from the permit content requirements of 40 C.F.R. § 70.6. Id. at 62993. Thus, the EPA disapproved Washington’s exemption of IEUs from Title V monitoring, reporting and record-keeping requirements. Petitioners seek review of this final agency decision. We have jurisdiction to review the EPA’s final action pursuant to § 307(b)(1) of the Clean Air Act, 42 U.S.C. § 7607(b)(1), and pursuant to our July 7, 1995, order retaining jurisdiction of this appeal. STANDARD OF REVIEW We review final administrative actions of the EPA pursuant to the Clean Air Act under the same standard as set forth in the Administrative Procedure Act. Abramowitz v. United States EPA 832 F.2d 1071, 1074 (9th Cir.1987). We will reverse the EPA’s decision only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 42 U.S.C. § 7607(d)(9)(A); Ober v. United States EPA 84 F.3d 304, 307 (9th Cir.1996). Under this standard, we must give deference to the EPA’s interpretation of its own regulations, if its interpretation is not unreasonable. Id.; Citizens for Clean Air v. United States EPA 959 F.2d 839, 844 (9th Cir.1992). However, if the EPA has abused its discretion in failing to follow its own prior standards, then we need not defer to the EPA’s anomalous interpretation. Oil, Chemical and Atomic Workers Int’l Union, Local 1-547 v. NLRB, 842 F.2d 1141, 1143 n. 1 (9th Cir.1988). DISCUSSION The EPA asserts that Part 70 allows IEUs to be exempted from permit application requirements, but not from permit content requirements. Section 70.5, which addresses requirements for permit applications, reads, in relevant part: “The Administrator may approve as part of a State program a list of insignificant activities and emissions levels which need not be included in permit applications.” 40 C.F.R. § 70.5(e). The EPA points out that § 70.6, which addresses permit content requirements, contains no such exemption for IEUs. However, the EPA has identified only two Title Y programs that in fact apply permitting requirements to IEUs—the Oregon and San Francisco Bay Area Quality Maintenance District programs. On the other hand, the EPA has condoned the exemption of IEUs from the permit content requirements of § 70.6 in at least eight other state and local programs. For example, the EPA has granted final, full approval to Title V programs from Ohio and Knox County, Tennessee, that omit IEUs entirely from permits. The EPA has also proposed to approve the programs of Jefferson County, Kentucky and Massachusetts, despite their exemption of IEUs from permitting requirements. Although the EPA required revisions in the Title V programs of Florida, North Dakota, Hawaii, and North Carolina, the EPA’s objections to those programs were based on grounds other than their general exemption of IEUs from the majority of permit content requirements. The EPA urges this court to ignore the apparent inconsistency between its Washington decision and its approval of other state programs on the ground that the Washington decision represents the EPA’s first thorough, well-reasoned discussion of whether IEUs may be exempted from § 70.6’s permitting requirements. Even so, the EPA’s rejection of Washington’s IEU rules is undeniably a change “in agency interpretation [which] must be supported by a ‘reasoned analysis’ over and above that required for an interpretation in the first instance.” Flagstaff Medical Center, Inc. v. Sullivan, 962 F.2d 879, 886 (9th Cir.1992) (citation omitted). The EPA may have the power to adjust its policies and rulings in light of experience and to announce new principles in an adjudicatory proceeding. California Trucking Ass’n v. ICC, 900 F.2d 208, 212 (9th Cir.1990). However, the EPA “may not depart, sub silentio, from its usual rules of decision to reach a different, unexplained result in a single case.” Id. (citations omitted). To the contrary, the EPA must clearly set forth the ground for its departure from prior norms so that we may understand the basis of the EPA’s action and judge the consistency of that action with the EPA’s mandate. Atchison, T. & S.F. Ry. v. Wichita Bd. of Trade, 412 U.S. 800, 808, 93 S.Ct. 2367, 2375, 37 L.Ed.2d 350 (1973); Arizona Elec. Power Coop., Inc. v. United States, 816 F.2d 1366, 1374 (9th Cir.1987). In this case, the EPA fails to provide any explanation at all for its anomalous Washington decision. Instead, it flatly denies the obvious inconsistency between its rejection of the Washington program and its approval of other state programs. 60 Fed.Reg. 62992, 62995 (1995) (“the commentators can point to no instance in which EPA has approved a State program which expressly exempts IEUs with applicable requirements from the permit content requirements of section 70.6.”). The EPA relies heavily on Puerto Rican Cement Co. v. United States EPA, 889 F.2d 292 (1st Cir.1989), for the proposition that “[n]o large agency can guarantee that all its administrators will react similarly, or interpret regulations identically, throughout the United States.” Id. at 299. In that ease, the First Circuit found no significant, legally recognizable conflict that the EPA had to justify- The EPA’s reliance on Puerto Rican Cement is misplaced. Central to the holding in that case was the fact that the “deviant” interpretation occurred but once; EPA materials written both before and after the deviant letter were consistent with the EPA’s position in the litigation. Id. Moreover, the deviant interpretation appeared in a letter written by a lower level official and did not reflect an unconscious change in established EPA policies. Id. By contrast, there are at least eight EPA decisions published in the Federal Register that conflict with the Washington decision here. Further, the EPA issued the conflicting decisions both before and after the Washington decision. The EPA approved Ohio’s IEU rules, which omit IEUs entirely from permits, on August 15, 1995. 60 Fed.Reg. 18790 (1995). The EPA then proposed to disapprove Washington’s exemption of IEUs from § 70.6 permit content requirements on September 14, 1995. 60 Fed.Reg. 50166, 50173 (1995). Eleven days later, on September 25, EPA published its final interim approval of Florida’s Title V program. 60 Fed. Reg. 49343 (1995). The EPA issued its final decision disapproving Washington’s IEUs rules on November 15, 1995. 60 Fed.Reg. 62997. That same day, the EPA published its final interim approval of North Carolina’s Title V program. 60 Fed.Reg. 57357 (1995). Ten days later, the EPA published its proposal to approve the Jefferson County, Kentucky program. 60 Fed.Reg. 58033 (1995). Finally, the EPA published interim approval of Massachusetts’ program on February 2, 1996, 61 Fed.Reg. 3827 (1996), and full approval of the Knox County, Tennessee program on April 19, 1996. 61 Fed.Reg. 18966 (1996). The fact that the EPA changed its mind and course four times refutes its argument that the Washington decision marked a reflected, deliberate, or lasting change of policy. In sum, the EPA has approved numerous state programs omitting IEUs from § 70.6’s monitoring and compliance requirements, but rejected Washington’s IEU rules on that very same basis. The EPA’s reliance on its broad supervisory power over state Title V programs does not provide an adequate basis to support its otherwise arbitrary treatment of Washington’s IEU rules. Cf. Arizona Elec. Power Coop., Inc., 816 F.2d at 1374 (agency’s “broad discretionary power” is not “an adequate basis to support its otherwise arbitrary treatment” of a single ease). We need not defer to the EPA because the EPA has abused its discretion in departing from its own prior standards. Oil, Chem. and Atomic Workers, 842 F.2d at 1143 n. 1. Because the EPA has failed to offer a sufficient explanation for its differential treatment of Washington’s Title V program, we reverse EPA’s decision on Washington’s IEU rules. McClaskey v. United States Dep’t of Energy, 720 F.2d 583, 587 (9th Cir.1983); see also Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983) (reviewing court must not supply a reasoned basis for agency’s action that agency itself has not given). ATTORNEYS’ FEES Petitioners seek an award of attorneys’ fees and costs on appeal pursuant to § 307(f) of the Clean Air Act, which provides: In any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such award is appropriate. ‘ 42 U.S.C. § 7607(f). An award of attorneys’ fees is “appropriate” where petitioners have: (1) attained some success on the merits; and (2) contributed substantially to the goals of the Clean Air Act in doing so. Abramowitz, 832 F.2d at 1079 (citing Ruckelshaus v. Sierra Club, 463 U.S. 680, 682-84, 103 S.Ct. 3274, 3276-77, 77 L.Ed.2d 938 (1983); Carson-Truckee Water Conservancy Dist. v. Secretary of the Interior, 748 F.2d 523, 525-26 (9th Cir.1984), cert. denied, 471 U.S. 1065, 105 S.Ct. 2139, 85 L.Ed.2d 497 (1985)). Because we reverse the EPA’s Washington decision as an unexplained departure from precedent, petitioners have attained sufficient success on the merits to be eligible for attorneys’ fees. Ruckelshaus v. Sierra Club, 463 U.S. at 682, 103 S.Ct. at 3276. The second question — whether petitioners have contributed substantially to the goals of the Clean Air Act — is more difficult. We have yet to address whether a financially able, nongovernmental party having no more than its own economic interests at stake should be entitled to attorneys’ fees under § 307(f). The Fifth Circuit has answered this question in the affirmative. Florida Power & Light Co. v. Costle, 683 F.2d 941, 943 (5th Cir.1982). However, we decline to adopt the approach of the Fifth Circuit. We agree with the District of Columbia Circuit that the legislative history of § 19(d) of the Toxic Substances Control Act, 15 U.S.C. § 2618(d), which uses the same “appropriate” standard as the Clean Air Act, reveals the clearest expression of congressional purpose in enacting statutes of this type. Alabama Power Co. v. Gorsuch, 672 F.2d 1, 7 n. 33 (D.C.Cir.1982). During debate on the final version of § 19(d), Senator Magnuson, the ranking Senate Manager on the Conference Committee, stated: It is not the intention of these provisions to provide an award for an individual or a group if that individual or group may stand to gain significant economic benefits through participation in the proceeding. ... It is not intended that the provisions support participation of persons, including corporations or trade associations, that could otherwise afford to participate____ Whether or not the person’s resources are sufficient to enable participation would include consideration of ... the likelihood that the person would seek to participate in the proceeding whether or not compensation was available. 112 Cong.Rec. 32,855 (1976) (remarks of Senator Magnuson), as quoted in Alabama Power Co., 672 F.2d at 7 n. 33. Thus, the legislative history indicates that Congress neither intended to subsidize all litigation under the Clean Air Act nor contemplated that § 307(f) would benefit financially able parties who, out of their own substantial economic interests, would have litigated anyway. For this reason, we hold that petitioners are ineligible for a fee award under § 307(f). Moreover, petitioners do not assert, nor do we find, that their litigation of this case has served the public interest in assisting in the interpretation and implementation of the Clean Air Act. Carson-Truckee, 748 F.2d at 525. Petitioners’ status as prevailing parties, by itself, does not automatically establish that they have assisted in the proper implementation of the Act. Cf. id. (“[a]l-though a complainant may have substantially prevailed in an action, the award of costs and attorney fees does not automatically follow.”). The issue under the Act has been relatively narrow and concerns only the anomalousness of the EPA’s Washington decision. Petitioners do not identify any other Title V programs that this litigation will affect. We are simply confronted with an anomalous decision which the agency should correct. Because petitioners, who are financially able to and would have litigated regardless of any potential for a fee award, have not contributed substantially to the goals of the Clean Air Act, for this further reason we do not find an award of attorneys’ fees to be appropriate. CONCLUSION We reverse the EPA’s decision with respect to Washington’s proposed IEU regulations as an unexplained departure from precedent, and thus, as an abuse of discretion. On remand, the EPA shall grant full approval to Washington’s proposed Title V program, as modified to correct the four other deficiencies identified in the EPA’s November 9, 1994, notice. Petitioners’ request for attorneys’ fees is denied. Each party shall bear its or her own costs on appeal. PETITION FOR REVIEW GRANTED. REVERSED AND REMANDED. . The EPA's 1994 interim approval decision mandated five changes in Washington's Title V program prior to final approval. 59 Fed.Reg. 55818. Petitioners do not challenge any of the approval conditions other than the requirement of repealing the IEU rules. . That motion, which was referred to this merits panel, is now granted. . As a preliminary matter, the EPA contends that petitioners' failure to raise before the agency their current objections to EPA’s decision forecloses this court’s consideration of these arguments. However, we find that petitioners did in fact call their instant objections to EPA's attention either before the case was remanded for EPA's reconsideration or during the comment period below. Thus, petitioners' arguments are properly before us. . See 59 Fed.Reg. 47019 (1994). . See 60 Fed.Reg. 32603, 32604 (1995) (requiring the district to clarify that its IEU exemption does not exempt sources "from title V permitting requirements”). . See Ohio Admin.Code § 3745-77-02(E)(l) ("[f]or major sources, the federally enforceable portion of the permit shall include all applicable requirements for all relevant emissions units at the major source ... the term "relevant emissions units” shall mean only those emissions units ... that are not insignificant activities and emissions levels.”); 60 Fed.Reg. 18790, 18791 (1995) (proposing to approve Ohio's permit program as satisfying the requirements of both §§ 70.5 and 70.6); 60 Fed.Reg. 42045 (1995) (granting final full approval). . See 60 Fed.Reg. 56281, 56282 (1995) (citing Knox County Air Pollution Control § 25.70.12 as providing “for the exemption of certain emissions units, or pollutant-emitting activities from the title V permitting process"); 61 Fed.Reg. 18966 (1996) (granting full approval to Knox County’s Title V program). . See Air Pollution Control Bd. of Jeff. Co., KY, Regs. 2.02 § 2 ("Notwithstanding the permitting requirements of section 1.1, applications and permits may not be required of the following ... [enumerating insignificant activities].”) The EPA has proposed to approve Jefferson County's program in spite of its exemption of IEUs "from application and permit requirements.” 60 Fed. Reg. 58035 (1995) (emphasis added). . Massachusetts's administrative code provides that "any emission unit(s) that are part of the following activities are exempt from the requirements of 310 CMR 7.00, [the Title V permitting program].” Mass.Regs.Code tit. 310, Appendix C § (5)(h). Despite this exemption of IEUs from permitting requirements, the EPA found that the Massachusetts program "substantially meets the requirements of 40 CFR ... [§] 70.6 with respect to permit content.” 61 Fed.Reg. 3827, 3828 (1996). . See Fla.Admin.Code § 62-210.300(3) (exempting insignificant activities from "the permitting requirements of this chapter...."); 60 Fed.Reg. 49343, 49344 (1995) (requiring, as a condition of full approval, several changes of Florida’s IEU rule, none of which pertained to the general exemption of IEUs from the permitting requirements of § 70.6). . In granting final interim approval to North Dakota's Title V program, the EPA’s concern was that North Dakota set insignificant emission levels that were "too high to be considered reasonable levels for exempting those emission units from Title V operating permit requirements." 60 Fed.Reg. 35335, 35336 (1995) (emphasis added). Significantly, the EPA did not object to the premise that IEUs, if set at lower thresholds, could be exempted from Title V monitoring and compliance requirements. In fact, the EPA concedes that its North Dakota decision allows IEUs to be exempted from the "majority” of permit content requirements. . In its Hawaii decision, the EPA acknowledged that under Hawaii’s proposed program, "insignificant activities need not be described on permit applications and are essentially exempt from part 70 permitting." 59 Fed.Reg. 61549, 61550 (1994) (emphasis added). The EPA granted interim approval of Hawaii's program and noted that the IEU provisions were inappropriate because new permit exemptions would be granted without prior EPA approval. However, the EPA did not object to the exemption of IEUs from part 70 permitting requirements. Id. . The EPA acknowledges that North Carolina exempts IEUs from permit content requirements. See 15A N.C.Admin.Code § 2Q.0102(b) (enumerating insignificant activities that "do not need a permit or permit modification under this Sub-chapter”); 15A N.C.Admin.Code § 2Q.0508(aa) (”[t]he permit shall not include insignificant activities.”) In reviewing the North Carolina program, the EPA did not even comment on the program’s exemption of IEUs from monitoring, reporting and record-keeping requirements. Instead, the EPA required only that North Carolina revise its insignificant emissions threshold levels downward from 40 tons per year to 5 tons per year or less. 60 Fed.Reg. 44805, 44807 (1995); 60 Fed.Reg. 57357, 57359 (1995).

Madison Gas & Electric Co. v. United States Environmental Protection Agency

POSNER, Chief Judge. We have consolidated for argument and decision two petitions for review of an order (technically, “final action,” 42 U.S.C. § 7607(b)(1))'by the Environmental Protection Agency awarding to electric utilities allowances for the emission of sulphur dioxide. Acid Rain Allowance Allocations and Reserves, 58 Fed.Reg. 15634, 15662, 15697 (March 23, 1993). The EPA has questioned our jurisdiction over these petitions but we rejected its view in Madison Gas & Electric Co. v. EPA, 4 F.3d 529 (7th Cir.1993), and have been given no reason to reexamine the issue. In 1990 Congress added Title IV to the Clean Air Act to deal with the problem of acid rain. 42 U.S.C. §§ 7651-7651o. Under Phase II of the statutory program, the one at issue in this case, the EPA is required to award, effective in the year 2000, SO2 emission allowances to each of the nation’s 2,200 electric utilities. § 7651d. Each allowance permits the emission of one ton of SO2 per year. The allowances can be bought and sold. § 7651b(b). This is the novel feature of the acid rain program. A market in pollution is created. Clean utilities can make money selling their excess allowances and dirty utilities that do not want to expend the resources necessary to become clean can instead buy allowances from the clean utilities. The EPA promulgated a provisional table of allowances for public comment. Madison Gas and Electric Company and City of Springfield, Illinois, City Water, Light and Power objected to the number of allowances they had received. The EPA rejected the objections (see “EPA Response to Public Comment on Proposed Allowance Allocation Rule,” March 1993, pp. 32-34 (unpublished)), which the two utilities renew with us. Madison claims that it is entitled to bonus allowances because it is “a utility operating company whose aggregate nameplate fossil fuel steam-electric capacity” exceeds 250 megawatts. 42 U.S.C. §§ 7651d(e)(l), (c)(4). Whether Madison crosses the 250 MWe threshold and is therefore entitled to the bonus allowances depends on whether its aggregate capacity includes that of two electric plants of which it is a 22 percent owner. Although another utility company operates the plants, Madison is a “utility operating company” as distinct from a holding company — that much is conceded — and it argues that “whose ... capacity” means “capacity owned by.” The EPA gave three reasons for rejecting Madison’s interpretation: “the sentence construction clearly indicates that the aggregate capacity is that of the operating company,” by which the EPA meant the company that operates the plants whose capacity is in issue; it would be infeasible' to “split a unit by ownership for the allocation of allowances”; and Madison’s interpretation is unworkable because ownership is reported for only the largest utilities. That is it. Nine short sentences disposing of a claim worth about $3 million to the utility (Madison is seeking 20,540 extra allowances, and the current price of an allowance is $150). Worse, nine sentences that say little. To begin with, it is not at all clear that, as the agency believes, the statutory language refers to capacity operated rather than owned. The word “operating” appears in the relevant section only as qualifying “company” so that it will be clear that the section does not apply to holding companies. Read naturally, the “whose” of “whose capacity” refers to the owner- of the capacity. That interpretation is not inevitable but even less so is the agency’s, and at argument the agency’s lawyer conceded that the statutory language was ambiguous. He was right. But his client, perhaps because it mistakenly thought the language clear, had offered only threadbare reasons for resolving the ambiguity against Madison. The first was that units (meaning utility generating plants) can’t be split. We are uncertain what that means or how it bears on the issue of owned versus operating capacity. The allocation, among the co-owners, of the allowances that have been allotted to the two units of which Madison is a 22 percent owner are not in issue. Madison wants bonus allowances for its other units, those of which it is sole owner. It is entitled to those bonus allowances if it can add 22 percent of the capacity of the two units of which it is a co-owner to the capacity of the units of which it is the sole owner, for the addition will put it over the 250 MWe threshold. We have no idea whether the utility that operates the units received any bonus allowances — and if it did, it would not follow that if the agency gives Madison bonus allowances it will have to change any other utility’s allowances. Bonus allowances do not count against the 8.9 million allowances ceiling under Phase II. 42 U.S.C. §§ 7651b(a)(l), 7651d(a)(2). There is a separate ceiling on bonus allowances, § 7651d(a)(2), but no indication that it has been reached yet. And even if Madison’s interpretation did require taking away some other utility’s allowances, that would hardly be a reason for regarding its interpretation as unworkable; it would be a reason for concluding that the agency’s allocation had been erroneous and should be corrected. The allowances are not even usable for another six years, so we do not understand why changing them now would cause problems. We also fail to understand why the fact that owned as distinct from operating capacity is not listed on the form that the EPA used to create a “National Database” of information upon which to base the allocation of emission allowances for the acid-rain program should make Madison’s position unworkable. Only the largest utilities could possibly qualify for bonus allowances on the basis of aggregate capacity, and they are required to submit ownership information, albeit on a different form. More important, utilities know what they own, of course, and the EPA can impose whatever requirements of proof are necessary to prevent them from pretending to own capacity that they do not. We acknowledge the possibility that some interests may be difficult to classify as “ownership,” cf. Madison Gas & Electric Co. v. Commissioner, 633 F.2d 512 (7th Cir.1980), but this would pose a substantial problem for the agency only if there were many utilities claiming allowances on the basis of owned rather than operated capacity and many variants on simple ownership in this industry. We have been told of only one other utility besides Madison that might be entitled to emission allowances on the basis of owned but not operated capacity — and it is not complaining about its allotment. At argument the EPA’s lawyer suggested another basis for the agency’s position: that the operating company has the greater stake in obtaining emission allowances because it is the operating company rather than the owner that is liable for penalties for a generating unit’s emitting SO2 in excess of its allowances. Whether that is a good or a bad ground for the agency’s decision (it seems very bad, because the penalty provisions impose liability on an “owner or operator,” 42 U.S.C. § 7651j), it is not a ground that the agency articulated. We are therefore barred by the Chenery doctrine from upholding its decision on the basis of it. SEC v. Chenery Corp., 318 U.S. 80, 87-88, 63 S.Ct. 454, 458-459, 87 L.Ed. 626 (1943); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971); Osaghae v. INS, 942 F.2d 1160, 1163 (7th Cir.1991). The issue presented by Springfield is different, but the agency’s handling of it reveals the same defects as its handling of Madison’s petition. Springfield wants to be classified as a utility operating company with “a total fossil fuel steam-electric generating capacity greater than 250 MWe, and less than 450 MWe,” as that will entitle it (unlike Madison, which is seeking allowances under a provision of the statute that favors large utilities rather than small ones) to more allowances than if its capacity exceeded 450 MWe. 42 U.S.C. §§ 7651d(c)(l), (c)(3). Whether Springfield is entitled to this classification depends in turn on whether “generating capacity” is defined as “name-plate capacity,” the EPA’s choice, or as “summer net dependable capability,” as Springfield prefers. Nameplate capacity is the capacity figure stamped on a generating unit by its manufacturer and includes the capacity necessary to power the unit itself. Summer net dependable capability is net of that capacity and differs from nameplate capacity in other respects as well, so that it can be either greater or smaller but in Springfield’s ease it is smaller and the use of it as the measure of capacity would bring the utility under the 450 MWe ceiling. The term “generating capacity” is nowhere defined. The agency’s response was again inadequate. It first chided Springfield for not having raised the issue when the National Database was compiled. But since data on summer net dependable capacity (unlike data on owned capacity) are part of the National Database, this part of the agency’s response falls completely flat. Next and last it observed that “there are many ways to measure capacity, not simply two—nameplate and summer net dependable. In the absence of Congressional direction on the proper measure for capacity under Section 405(e), EPA looks to other provisions in the Act and has discretion to choose a rationale [sic] measure. In fact, paragraphs 405(c)(1) and (2) do specify the utility’s aggregate nameplate capacity. Therefore, EPA believes that the capacity measure for Section 405(c)(3) should also be nameplate.” End of analysis. Although the EPA is free to choose any “reasonable” interpretation for an undefined term in the statutes it administers, Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 845, 866, 104 S.Ct. 2778, 2793, 2793, 81 L.Ed.2d 694 (1984), it must exhibit the reasons for its choice and those reasons must be at least plausible. As the Supreme Court has said, the agency must “articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983), quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 245, 9 L.Ed.2d 207 (1962). Otherwise the reviewing court cannot assess the reasonableness of the agency’s choice. Schurz Communications, Inc. v. FCC, 982 F.2d 1043, 1049 (7th Cir.1992). That undemanding standard is not satisfied. The fact that nameplate capacity is specified in the two preceding subsections of the statute is not a reason why the capacity measure for (c)(3) “should also be nameplate.” It is a reason against. All three subsections were enacted at the same time. Two use “nameplate capacity” and (c)(3), the very next section, the one at issue here, uses a different term, “generating capacity.” This would ordinarily be thought strong evidence that Congress meant something different. Maybe not. But the EPA does not discuss the history or structure of the statute, the different rationales of the different sections, or—the agency’s special province—technical or administrative considerations that might favor defining generating capacity as nameplate capacity. It rests its decision entirely on the heretofore unknown principle of statutory interpretation that if section 1 says AB, and section 2 says AB, and section 3 says CB, and C & A, nevertheless CB = AB. The agency has failed to furnish a reasoned basis for its actions. We do not say that it cannot do so. This is a technical field. The EPA knows more about it than we do and under Chevron has the primary responsibility for interpreting undefined terms. But it has not furnished a reasoned ground for denying these utilities’ requests for additional allowances and it therefore must, if it wants to adhere to its denial, try again. It must explain how its denial furthers the goals, or is required by administrative exigencies, of the acid-rain program. The petitions for review are granted, the disallowance of the petitioners’ claims for additional emission allowances is vacated, and the matter is returned to the agency for further consideration in conformity with this opinion. VACATED AND REMANDED.

Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency

FERGUSON,.Senior Circuit Judge: The Natural Resources Defense Council (“NRDC”) challenges aspects of the Environmental Protection Agency’s (“EPA”) recent Clean Water Act storm water discharge rule. NRDC argues that the deadlines contained in the rule and the scope of its coverage are unlawful under section 402(i), (p) of the Clean Water Act, 33 U.S.C. § 1342(Z), (p). We grant partial relief. I. BACKGROUND In 1972 Congress enacted significant amendments to the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251-1387 (1988), “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). One major focus of the CWA is the control of “point source” pollution. A “point source” is “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel ... from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). The CWA also established the National Pollutant Discharge Elimination System (“NPDES”), requiring permits for any discharge of pollutants from a point source pursuant to section 402 of the CWA, 33 U.S.C. § 1342. The CWA empowers EPA or an authorized state to conduct an NPDES permitting, program. 33 U.S.C. § 1342(a)-(b). Under the program, as long as the permit issued contains conditions that implement the requirements of the CWA, the EPA may issue a permit for discharge of any pollutant. 33 U.S.C. § 1342(a)(1). This case involves runoff from diffuse sources that eventually passes through storm sewer systems and is thus subject to the NPDES permit program. See National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges; Application Deadlines, 56 Fed.Reg. 56,548 (1991). One recent study concluded that pollution from such sources, including runoff from urban areas, construction sites, and agricultural land, is now a leading cause of water quality impairment. 55 Fed.Reg. at 47,991. A. Efforts to Regulate Storm Water Dis- . charge. Following the enactment of the CWA amendments in 1972, EPA promulgated NPDES permit regulations exempting a number of classes of point sources, including uncontaminated storm water discharge, on. the basis of “administrative infeasibility,” i.e., the extraordinary administrative burden imposed on EPA should it have to issue permits for possibly millions of point sources of runoff. Natural Resources Defense Council v. Costle, 568 F.2d 1369, 1372 & n. 5, 1377 (D.C.Cir.1977). NRDC challenged the exemptions. Relying on the language of the statute, its legislative history and precedent, the D.C. Circuit held that the EPA Administrator did not have the authority to create categorical exemptions from regulation. Id. at 1379. However, the court acknowledged the agency's discretion to shape permits in ways “not inconsistent with the clear terms of the Act.” Id. at 1382. Following this litigation, EPA promulgated regulations covering storm water discharges in 1979, 1980 and 1984. 56 Fed. Reg. 56,548. NRDC challenged various aspects of these rules both at the administrative level as well as in the courts. Recognizing both the environmental threat posed by storm water runoff and EPA’s problems in implementing regulations, Congress passed the Water Quality Act of 1987 containing amendments to the CWA (“the 1987 amendments”), portions of which set up a new scheme for regulation of storm water runoff. Section 402(p), as amended, established deadlines by which certain storm water dischargers must apply for permits, the EPA or states must act on permits and dischargers must implement their permits. See Appendix A. The Act also set up a moratorium on permitting requirements for most storm water discharges, which ends on October 1, 1992. There are five exceptions that are required to obtain permits before that date: (A) A discharge with respect to which a permit has been issued under this section before February 4, 1987. (B) A discharge associated with industrial activity. (C) A discharge from a municipal separate storm sewer system serving a population of 250,000 or more. (D) A discharge from a municipal separate storm sewer system serving a population of 100,000 or more but less than 250,000. (E) A discharge for which the Administrator or the State, ... determines that the storm water discharge contributes to a violation of a water quality standard or is a significant contributor of pollutants to the waters of the United States. CWA § 402(p)(2); 33 U.S.C. § 1342(p)(2). Section 402(p) also outlines an incremental or “phase-in” approach to issuance of storm water discharge permits. The purpose of this approach was to allow EPA and the states to focus their attention on the most serious problems first. 133 Cong. Rec. 991 (1987). Section 402(p) requires EPA to promulgate rules regulating permit application procedures in a staggered fashion. Responding to the 1987 amendments requiring the EPA to issue permit application requirements for storm water discharges associated with industrial activities and large municipalities, the EPA issued final rules on November 16, 1990, almost two years after its deadline (“the November 1990 rule”). 55 Fed.Reg. at 47,990. EPA issued amended rules on March 21, 1991 (“the March 1991 rule”). 56 Fed.Reg. at 12,098. It is to portions of these rules that NRDC objects. B. Jurisdiction. We have jurisdiction pursuant to CWA § 509(b)(1), 33 U.S.C. § 1369(b)(1). Section 509(b)(1) describes six types of actions by the EPA administrator that are subject to review in the court of appeals. Although the parties do not specify the section upon which they rely, § 509(b)(1)(F), 33 U.S.C. § 1369(b)(1)(F) allows the court to review the issuance or denial of a permit under CWA § 402, 83 U.S.C. § 1342. The court also has the power to review rules that regulate the underlying permit procedures. NRDC v. EPA, 656 F.2d 768, 775 (D.C.Cir. 1981); cf. E.I. DuPont de Nemours & Co. v. Train, 430 U.S. 112, 136, 97 S.Ct. 965, 979, 51 L.Ed.2d 204 (1977). NRDC filed timely petitions for review of the final rules at issue here pursuant to CWA § 509(b)(1), 33 U.S.C. 1369(b)(1). C. Standing. Any “interested person” may seek review of designated actions of the EPA Administrator. 33 U.S.C. § 1369(b)(1). This court has held that the injury-in-fact-rule for standing of Sierra Club v. Morton, 405 U.S. 727, 733, 92 S.Ct. 1361, 1365, 31 L.Ed.2d 636 (1972) covers the “interested person” language. Trustees for Alaska v. EPA, 749 F.2d 549, 554 (9th Cir.1984) (adopting the analysis in Montgomery Environmental Coalition v. Costle, 646 F.2d 568, 578 (D.C.Cir.1980)). A petitioner under Sierra Club must suffer adverse affects to her economic interests or “[aesthetic and environmental well-being.” Sierra Club, 405 U.S. at 734, 92 S.Ct. at 1366. Intervenors are various industry and trade groups subject to regulation under the rules at issue. NRDC claims, inter alia, that EPA has delayed unlawfully promulgation of storm water regulations and that its regulations, as published, inadequately control storm water contaminants. NRDC’s allegations and the potential economic impact of the rules on the inter-venors satisfy the broad standing requirement applicable here. II. DISCUSSION A. Standard of Review. 5 U.S.C. § 706(2)(A) (1988) authorizes the court to “set aside agency action ... found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Under this standard a court must find a “rational connection between the facts found and the choice made.” Sierra Pacific Indus., 866 F.2d 1099, 1105 (9th Cir.1989) (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983)). The court must decide whether the agency considered the relevant factors and whether there has been a clear error of judgment. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 am). On questions of statutory construction, courts must carry out the unambiguously expressed intent of Congress. If a statute is “silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). Congress may leave an explicit gap, thus delegating legislative authority to an agency subject to the arbitrary and capricious standard. Id. at 843-44, 104 S.Ct. at 2781-82. If legislative delegation is implicit, courts must defer to an agency’s statutory interpretation as long as it is reasonable. Id. at 844, 104 S.Ct. at 2782. This is because an agency has technical expertise as well as the authority to reconcile conflicting policies. See id. Nevertheless, questions of congressional intent that can be answered with “traditional tools of statutory construction” are still firmly within the province of the courts. INS v. Cardoza-Fonseca, 480 U.S. 421, 447-48, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987). B. EPA’s Extension of Statutory Deadlines. 1. Background. NRDC challenges EPA’s extension of certain statutory deadlines in the November 1990 and March 1991 rules. The statutory scheme calls for EPA to consider permit applications from the most serious sources of pollutants first: industrial dis-chargers and large municipal separate storm sewer systems (“large systems”). The statute required EPA to establish regulations for permit application requirements for these two groups by February 4, 1989; to receive applications for permits one year later, February 4, 1990; and to approve or deny the permits by February 4, 1991. Permittees may be given up to three years to comply with their permits. CWA § 402(p)(4)(A), 33 U.S.C. § 1342(p)(4)(A). Medium sized municipal separate storm sewer systems (“medium systems”) (those serving a population of 100,000 or more but less than 250,000) are on a similar schedule, except that the deadlines are two years later. CWA § 402(p)(4)(B), 33 U.S.C. § 1342(p)(4)(B). The temporary statutory exemption for all storm water sources expires on October 1,1992. CWA § 402(p)(l), 33 U.S.C. § 1342(p)(l). EPA states that discharges from municipal separate storm sewer systems serving a population of under 100,000 are to be regulated after that date. The EPA rules at issue changed the statutory deadlines as follows: Deadlines pursuant to CWA § 402(p) Discharge Deadline type to issue rules EPA Deadlines Deadline for Application application and deadlines approval of permits Industrial 2/4/89 2/4/90-applications due 2/4/91-approval due See below Large municipal systems 2/4/89 2/4/90-applieations due 2/4/91-approval Part 1-11/18/91■ Part 2-11/16/92 Medium municipal systems 2/4/91 2/4/92-applications due 2/4/93-approval due Part 1-5/18/92 Part 2-5/17/93 EPA Application Deadlines for “Industrial Activity” Dischargers Individual Group due 11/18/91 Part 1-9/30/91; Part 2-10/1/92 As the chart illustrates, EPA made other elaborations on the statutory scheme in addition to extending the deadlines. Medium and large municipal systems and industrial dischargers are now subject to a two-part application process. 55 Fed.Reg. at 48,072. The November 1990 rules allow industrial dischargers to apply for either individual or group permits. Id. at 48,066-67. The March 1991 rules further extended the deadline for part 1 of the group industrial discharger permits to September 30, 1991. 56 Fed.Reg. at 12,098. A final rule published on April 2, 1992 extended the deadline for the part 2 group application for industrial dischargers from May-18, 1992 to October 1, 1992. 57 Fed.Reg. at 11,394. The EPA rules at issue contain neither deadlines for final EPA or state approval of permits nor deadlines for compliance with the permit terms. Seeking to compel the EPA to conform to the statutory scheme, NRDC asks this court: a) to declare unlawful EPA’s failure to issue certain of the storm water permitting regulations by February 4, 1989 and EPA’s extension of certain statutory deadlines; b) to enjoin EPA from granting future extensions of the deadlines; c) to compel EPA to include deadlines for permit approval or denial and permit compliance consistent with the statute; and d) to compel EPA to require that medium and small municipal systems meet the same deadlines as large systems. 2. Discussion. a. Request for Declaratory Relief. NRDC asks the court to (1) declare unlawful EPA’s failure to issue storm water permitting regulations by February 4, 1989; and (2) declare unlawful EPA’s extension of deadlines for submission of permit applications by large and medium systems and individual industrial dischargers. A request.for declaratory relief in a challenge to an agency action is ripe for review if the action at issue is final and the questions involved are legal ones. Public Util. Dist. No. 1 v. Bonneville Power Admin., 947 F.2d 386, 390 n. 1 (9th Cir.1991) (citations omitted), cert. denied, - U.S. -, 112 S.Ct. 1759, 118 L.Ed.2d 422 (1992). Here, the agency regulations are final. See 55 Fed.Reg. at 47,990, 56 Fed. Reg. at 12,096. The question of whether the EPA is bound by the statutory scheme set by Congress is a legal one. The request for declaratory relief is therefore ripe for consideration by this court. The granting of declaratory relief “rests in the sound discretion of the [] court exercised in the public interest.” 10A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice & Civil Procedure § 2759, at 645 (1983). The guiding principles are whether a judgment will clarify and settle' the legal relations at issue and whether it will afford relief from the uncertainty and controversy giving rise to the proceedings. McGraw-Edison Co. v. Preformed Line Products Co., 362 F.2d 339, 342 (9th Cir.) (citing Borchard, Declaratory Judgments 299 (2d ed. 1941)), cert. denied, 385 U.S. 919, 87 S.Ct. 229, 17 L.Ed.2d 143 (1966). A court declaration delineates important rights and responsibilities and can be “a message not only to the parties but also to the public and has significant educational and lasting importance.” Bilbrey by Bilbrey v. Brown, 738 F.2d 1462, 1471 (9th Cir.1984). Because of the importance of the interests and the principles at stake, we grant declaratory relief. EPA does not have the authority to ignore unambiguous deadlines set by Congress. Delaney v. EPA, 898 F.2d 687, 691 (9th Cir.), cert. denied, - U.S.-, 111 S.Ct. 556, 112 L.Ed.2d 563 (1990). In arguing against injunctive relief, EPA points to cases recognizing factors indicating that equitable relief may be inappropriate. See, e.g., In re Barr Laboratories, Inc., 930 F.2d 72, 74 (D.C.Cir.) (agency’s choice of priorities is an important factor in considering whether to grant equitable relief), cert. denied, - U.S. -, 112 S.Ct. 297, 116 L.Ed.2d 241 (1991); Natural Resources Defense Council v. Train, 510 F.2d 692, 712 (D.C.Cir.1975) (court may need to give agency some leeway due to budgetary commitments or technological problems); Environmental Defense Fund v. Thomas, 627 F.Supp. 566, 569-70 (D.D.C.1986) (EPA's good faith is a factor). None of these factors militates against an award of declaratory relief. They do not grant an executive agency the authority to bypass explicit congressional deadlines. The deadlines are not aspirational — Congress set them and expected compliance. See 132 Cong.Rec. 32,381-82 (remarks of Senator Stafford, commenting on EPA delay and the establishment of statutory deadlines as “outside dates.”) This court must uphold adherence to the law, and cannot condone the failure of an executive agency to conform to express statutory requirements. For these reasons, we grant NRDC’s request for declaratory relief. EPA’s failure to abide by the statutory deadlines is unlawful. b. Request for Injunction. NRDC asks the Court to enjoin the EPA from further extensions for permit applications from municipal and industrial dischar-gers. Injunctions are an extraordinary remedy issued at a court’s discretion when there is a compelling need. 11 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2942, at 365, 368-69 (1973). We decline to enjoin the EPA on discretionary grounds. Injunctive relief could involve extraordinary supervision by this court. In-junctive' relief may be inappropriate where it requires constant supervision. Id. at 376. At issue are deadlines for the three major categories of dischargers, each of which has a two-part application. The permitting process will go on for several years. While recognizing the importance of the interests involved, we nevertheless decline to engage in the active management of such a remedy. In this situation, we must operate on the assumption that an agency will follow the dictates of Congress and the court. As noted above, the EPA does not have the authority to predicate future rules or deadlines in disagreement with this opinion. See Allegheny General Hosp. v. NLRB, 608 F.2d 965, 970 (3rd Cir.1979). We presume that the EPA will duly perform its statutory duties. See Upholstered Furniture Action Council v. California Bureau of Home Furnishing, 442 F.Supp. 565, 568 (E.D.Cal.1977) (three judge court). Because we decline to take on potentially extensive supervision of the EPA, Congress may need to find other ways to ensure compliance if the agency is recalcitrant. c. Deadlines for Permit Approval and Compliance. NRDC requests that the court compel EPA to revise the rules to include deadlines for permit approval or denial and permit compliance consistent with the statute. Section 402(p)(4)(A) calls for the EPA to issue or deny permits for industrial and large municipalities by February 4, 1991, which is one year after the applications are submitted, and states that “[a]ny such permit shall provide for compliance as expeditiously as practicable, but in no event later than 3 years after the date of the issuance of such permit.” CWA § 402(p)(4)(A), 33 U.S.C. § 1342(p)(4)(A). The statute sets out a similar schedule for medium municipalities, except that the deadlines are two years later. CWA § 402(p)(4)(B), 33 U.S.C. § 1342(p)(4)(B). The regulations promulgated by the EPA contain neither final approval deadlines nor compliance deadlines for industrial dischargers or medium and large municipalities. 55 Fed.Reg. at 48,072. By failing to regulate final approval and compliance, EPA has omitted a key component of the statutory scheme. To ensure adherence to the statutory time frame, especially in the face of deadlines already missed, the regulated community must be informed of these deadlines. EPA’s failure to include these important deadlines is an arbitrary and capricious exercise of its responsibility to issue regulations pursuant to the statute. We see no need for additional delay while supplemental regulations are issued. Given the extraordinary delays already encountered, EPA must avoid further delay. The regulations should inform the regulated community of the statute’s outside dates for compliance. See CWA § 402(p)(4)(A)-(B), 33 U.S.C. § 1342(p)(4)(A)-(B). d. Timeline for Small and Medium Systems. The parties disagree on when small systems (those serving a population of less than 100,000) should be regulated. As noted above, the temporary statutory exemption for all storm water sources expires on October 1,1992. The statute requires EPA to establish a comprehensive program to regulate point sources subject to the moratorium, such as small municipalities, by that date. CWA § 401(p)(l), (6), 33 U.S.C. § 1342(p)(l), (6). Pointing to a perceived statutory gap, NRDC argues that small systems should be subject to the same permitting schedule applicable to medium systems, to assure that they are regulated when the permitting moratorium ends on October 1, 1992. However, the plain language of the statute prohibits this. Section 402(p)(l) forbids requiring a permit for entities not listed as exceptions (such as small municipalities) before October 1, 1992. Yet the deadline for part 1 of the application for medium systems is currently May 18, 1992. 55 Fed. Reg. at 48,072. Even if NRDC is correct that EPA is not proceeding so that regulations will be in place on October 1, 1992, we cannot ignore the plain language of the statute by adopting NRDC’s solution. The CWA does not require regulation of such systems prior to expiration of the moratorium. We therefore reject NRDC’s proposal that small systems be put on the same schedule as medium ones. NRDC asks the court to put the medium systems on the same schedule as the large systems, in order to achieve closer compliance with the timeline set out in § 402(p)(4)(B). However, EPA’s current schedule for medium systems, although delayed, is still within the statutory scheme in its relation to the schedule for large systems. That is, Congress placed the medium systems on a staggered permitting schedule to start two years after the large systems and industrial users. The EPA schedule now has medium municipal system applications due six months after the applications for the large municipal systems. 55 Fed.Reg. at 48,072. For this reason, the current deadline for medium municipalities does not appear to be unreasonable despite the unlawful delay. C. Exclusion of Certain Sources from Regulation. 1. Definition of “Municipal Separate Storm Sewer System. ” Section 402(p) refers to “municipal separate storm sewer system[s] serving a population” of a specified size. CWA § 402(p)(2)(C), (D), 33 U.S.C. § 1342(p)(2)(C), (D). NRDC contends that EPA’s definition of this term violates the plain language of-the statute, fails to take into account the statutory definition of the word “municipality” and is arbitrary and capricious because the agency considered improper factors when it defined the term. All of this, according to NRDC, results in an impermissible narrowing of the municipalities covered by the first two rounds of permitting. The Í987 amendments to the CWA did not contain definitions of “municipal” or “separate storm sewer system,” but the CWA amendments enacted in 1972 defined “municipality” as follows: [ejxcept as otherwise specifically provided, when used in this chapter: _ (4) The term “municipality” means a city, town, borough, county, parish, district, association, or other public body created by or pursuant to State law and having jurisdiction over disposal of sewage, industrial wastes, or other wastes, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under section 1288 of this title [33 U.S.C. § 1288]. 33 U.S.C. § 1362. In the November 1990 regulations, the EPA defined “municipal separate storm sewer” as: “a conveyance or system of conveyances ... [ojwned or operated by a State, city, town, borough, county, parish, district, association or other public body....” 55 Fed.Reg. at 48,065 (to be codified at 40 C.F.R. § 122.26(b)(8)). This definition echoes the language of 33 U.S.C. § 1362(4). However, when defining large and medium municipal separate storm sewer systems serving a population of a specified size, EPA brought in other factors. 55 Fed.Reg. at 48,064 (to be codified at 40 C.F.R. § 122.26(b)(4), (7)). EPA defines medium and large separate storm sewer systems using two main categories: 1) separate storm sewer systems located in an incorporated place with the requisite population, and 2) separate storm sewer systems located in unincorporated, urbanized portions of counties containing the requisite population (as listed in Appendices H and I to the rule), excluding those municipal separate sewers located in incorporated places, townships or towns within such counties. 55 Fed.Reg. at 48,064. NRDC opposes this definition for municipal separate storm sewer systems for the reasons explained below. First, NRDC argues that according to the definitional section cited above and principles of statutory construction, general definitions apply wherever the defined term appears elsewhere in the law. See 33 U.S.C. § 1362 (“[ejxcept as otherwise specifically provided” the definitions apply throughout the act); Sierra Club v. Clark, 755 F.2d 608, 613 (8th Cir.1985). NRDC argues that the scope of the statutory definition of “municipality” in 33 U.S.C. § 1362(4) and the scope of the phrase “municipal separate storm sewer system serving a population” are the same. NRDC thus proposes that the correct definition is a system of conveyances owned or operated by the full range of entities described at 33 U.S.C. § 1362(4), (cities, towns, etc.) with populations within the ranges designated at § 402(p)(2), i.e., 250,000 or more for large systems and between 100,000 and 250,000 for medium systems. However, we do not believe that the entire phrase used in the act, “municipal separate storm sewer system serving a population of [a specified size]” can be equated with the term “municipality” in the manner that NRDC proposes. The act contains no definition of either “system” or “serving a population.” The word “system” is particularly ambiguous in the context of storm sewers. We therefore agree with EPA that there is no single, plain meaning for the disputed words. Because the term is ambiguous, we must look first to whether Congress addressed the issue in another way. See Abourezk v. Reagan, 785 F.2d 1043, 1053 (D.C.Cir.1986) (“ [i]f the court finds that Congress had a specific intent ..., the court stops there and enforces that intent regardless of the agency’s interpretation”) (citing Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837, 842-43 & n. 9, 104 S.Ct. 2778, 2781 & n. 9, 81 L.Ed.2d 694 (1984)), aff'd by an equally divided court, 484 U.S. 1, 108 S.Ct. 252, 98 L.Ed.2d 1 (1987). The legislative history is not illuminating. Although it explains that a purpose of the permitting scheme was to attack the most serious sources of discharge first, this general goal is not helpful in discerning the specific meaning of “municipal separate storm sewer system serving a population.” Without clear guidance from Congress, we turn to the agency’s justifications for its choices in the face of NRDC’s objections. NRDC claims that EPA’s definition is arbitrary and capricious because EPA considered improper factors, including its own work load, the incorporation status of municipalities, and urban density. “[A]n agency rule would be arbitrary and capricious if 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.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). EPA’s final definition took into account many issues and concerns of the regulated community. See 55 Fed.Reg. at 48;039. EPA considered eight different options for defining large and medium municipal separate storm sewer systems. 55 Fed.Reg. at 48,038-43. EPA considered focusing on ownership or operation of a system by an incorporated place, but found that this approach did not take into account systems operated by flood control districts, state transportation systems, or concerns relating to watershed management. It instead fashioned a multi-faceted approach. This choice of approach is not unreasonable. NRDC challenges EPA’s consideration of incorporation as a factor. It claims that limiting regulation to incorporated places of the appropriate, size excludes portions of 378 counties that contain over .100,000 people. NRDC essentially contends that because counties are a type of municipality, storm water conveyances in all counties with populations over 100,000 should come within the definition of either medium or large municipal separate storm sewer systems. We have already rejected NRDC’s claim that the definition of regulated “systems” must include conveyances in all “municipalities.” EPA’s use of incorporation as a factor is not arbitrary and capricious or inconsistent with the statute. The agency proceeded on the reasonable assumption that cities possess the police powers needed effectively to control land use within their borders. See 55 Fed.Reg. at 48,039, 48,043. The first major category within the definition of regulated “systems,” municipal separate storm sewers located within incorporated places having the requisite population, is reasonable. NRDC questions EPA’s second major category, which covers storm sewers located in unincorporated urbanized areas of counties with the designated population, but excludes conveyances located in incorporated places with populations under 100,-000 within those counties. The exclusion, however, has a legitimate statutory basis. The statute prohibits EPA from requiring permits for systems serving under 100,000 persons prior to October 1, 1992. CWA § 402(p)(l), 33 U.S.C. § 1342(p)(l). EPA reasonably concluded that conveyances within small incorporated places should be considered parts of small systems limited to those incorporated places, rather than parts of larger systems serving whole counties. EPA’s definition attempts to capture population centers of over 100,000 (by including urbanized, unincorporated areas) without violating the congressional stricture against regulation of areas with populations under 100,000 (thus excluding incorporated areas of less than 100,000 within a county). In arriving at its definition of “municipal separate storm sewer systems serving” a designated population, EPA investigated numerous options and considered comments from a range of viewpoints. We find “a rational connection between the facts found and the choices made.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43, 103 S.Ct. at 2866, NRDC objects to EPA’s use of 1980 census data and EPA’s definition of urban density. While it appears that NRDC has solid arguments as to why it would be preferable to use 1990 census figures and adopt its method of determining urban density, our role is not to determine whether EPA has chosen the best among all possible methods. We can only determine if its choices are rational. EPA chose the 1980 census data because it was the most widely available decennial census data at the time of rule formulation and promulgation. Neither this choice nor its use of the Census Bureau’s definition of urbanized area is arbitrary and capricious. EPA took agency work load into account in arriving at its definition. 55 Fed.Reg. at 48,039. NRDC objects on the basis that Congress considered the issue of work load when it developed the “phase-in” approach and allowed permit applications on a system- or jurisdiction-wide basis. However, this broad congressional scheme does not prohibit further consideration of EPA’s work load as one among many factors in its attempt to fashion a workable program. In summary, NRDC’s argument that the phrase “municipal separate storm sewer system serving a population” has the plain meaning NRDC proposes is not persuasive. Although EPA’s definition in the face of the statute’s ambiguity is complex, if not convoluted, it is not arbitrary and capricious, and we therefore reject NRDC’s request that the definition be declared invalid. 2. EPA Exemption for Light Industry. NRDC challenges the portion of the EPA rule excluding various types of “light industry” from the definition of “discharge associated with industrial activity.” Under CWA § 402(p)(2)(B), a “discharge associated with industrial activity” is an exception to the permit moratorium. In the November rule, EPA modified the statutory scheme by drawing distinctions among light and heavy industry and considering actual exposure to industrial materials. Although the statute does not define “associated with industrial activity,” the EPA definition excludes industries it considers more comparable to retail, commercial or service industries. The excluded categories are manufacturers of pharmaceuticals, paints, varnishes, lacquers, enamels, machinery, computers, electrical equipment, transportation equipment, glass products, fabrics, furniture, paper board, food processors, printers, jewelry, toys and tobacco products. 55 Fed.Reg. at 48,008. These types of facilities need apply for permits only if certain work areas or actual materials are exposed to storm water. Id. EPA justifies these exemptions on the assumption that most of the activity at these types of manufacturers takes place indoors, and that emissions from stacks, use of unhoused manufacturing equipment, outside material storage or disposal, and generation of large amounts of dust and particles will all be minimal. 55 Fed.Reg. at 48,008. Thus, EPA considers actual exposure to certain materials or stormwater for the light industry categories, but does not consider actual exposure for the other industrial categories. After careful review of the statutory language and the record, we conclude that this distinction is impermissible. We note that the language “discharges associated with industrial activity” is very broad. The operative word is “associated.” It is not necessary that storm water be contaminated or come into direct contact with pollutants; only association with any type of industrial activity is necessary. There is a brief discussion of the issue in the legislative history: “[a] discharge is associated with industrial activity if it is directly related to manufacturing, processing or raw materials storage areas at an industrial plant. Discharges which do not meet this definition include those discharges associated with parking lots and administrative and employee buildings.” 133 Cong.Rec. 985 (1987); see also 132 Cong.Rec. 31,968 (1986) (same). EPA argues that the words “directly related” indicate Congress’s intent to require permits for only those materials that come in contact with industrial materials. See 55 Fed. Reg. at 48,007. However, the examples given — parking lots and administrative buildings — indicate that the intent was to exclude only those facilities or parts of a facility that are completely non-industrial. EPA’s definition follows the language quoted above: “Storm water discharge associated with industrial activity means the discharge from any conveyance which is used for collecting and conveying stormwa-ter and which is directly related to manufacturing, processing or raw materials storage areas at an industrial plant.” 40 C.F.R. § 122.26(b)(14). EPA applies this definition differently depending on type of industry. EPA bases its regulation of industrial activity on Standard Industrial Classification (“SIC”) categories. For most of the industrial SIC categories (identified at 40 C.F.R. § 122.26(b)(i-x)), the EPA definition includes all stormwater discharges from plant yards, access roads and rail lines, material handling sites, storage and disposal sites, shipping and receiving areas, and manufacturing buildings. 40 C.F.R. § 122.26(b)(14). However, for the “light industry” categories identified in 40 C.F.R. §. 122.26(b)(14)(xi), stormwater must be actually exposed to raw materials, by-products, waste, etc., before permitting is required. EPA justifies this difference on the ground that for “light industry,” industrial activity will take place indoors, and that generation of large amounts of particles and emissions will be minimal. There is nothing in the record submitted to the Court however, which supports this assumption. See, e.g., 55 Fed.Reg. at 48,008. Without supportable facts, we are unable to rely on our usual assumption that the EPA has rationally exercised the duties delegated to it by Congress. To exempt these industries from the normal permitting process based on an unsubstantiated assumption about the this group of facilities is arbitrary and capricious. In addition, by designating these light industries as a group that need only apply for permits if actual exposure occurs, EPA impermissibly alters the statutory scheme. The statute did set up a similar approach for oil, gas, and mining industries. However, no other classes of industrial activities are subject to the more lenient “actual exposure” test. To require actual exposure entirely shifts the burden in the permitting scheme. Most industrial facilities will have to apply for permits and show the EPA or state that they are in compliance. Light industries will be relieved from applying for permits unless actual exposure occurs. The permitting scheme then will work only if these facilities self-report, or the EPA searches out the sources and shows that exposure is occurring. We do not know the likelihood of either self-reporting or EPA inspection and monitoring of light industries, and the regulations appear to contemplate neither for these industries. For this reason, the proposed regulation is also arbitrary and capricious. In conclusion, we hold that the rule for light industries is arbitrary and capricious, vacate the rule, and remand for further proceedings. 3. Exclusion of Construction Sites of Less than Five Acres. NRDC challenges the exemption for construction sites of less than five acres. EPA concedes that the construction industry should be subject to storm water permitting because at a high level of intensity, construction is equivalent to other regulated industrial activities. 55 Fed.Reg. at 48,033. Construction sites can pollute with soil sediments, phosphorus, nitrogen, nutrients from fertilizers, pesticides, petroleum products, construction chemicals and solid wastes. Id. EPA states that such substances can be toxic to aquatic organisms, and affect water used for drinking and recreation. Id. Following its characterization of construction sites as suitable for regulation, EPA defined its task as determining “an acreage limit [ ] appropriate for identifying sites that amount are (sic) to industrial activity.” 55 Fed.Reg. at 48,036. EPA originally proposed regulations that exempted operations that disturb less than one acre of land and are not part of a common plan of development or sale. 55 Fed.Reg. at 48,035-36. In response to comments by the regulated community about the administrative burden presented by the regulation, EPA increased the exemption to five acres. 55 Fed.Reg. at 48,-036. EPA also noted that larger sites will involve heavier equipment for removing vegetation and bedrock than smaller sites. Id. at 48,036. We find that EPA’s rationale for increasing the limit from one to five acres inadequate and therefore arbitrary and capricious. EPA cites no information to support its perception that construction activities on less than five acres are non-industrial in nature; EPA also claims agency power, inherent in statutory schemes, to make categorical exemptions when the result is de minimis. Alabama Power Co. v. Costle, 636 F.2d 323, 360 (D.C.Cir.1979). However, if construction activity is industrial in nature, and EPA concedes that it is, EPA is not free to create exemptions from permitting requirements for such activity. See Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1377 (D.C.Cir. 1977) (once Congress has delineated an area that requires permits, EPA is not free to create exemptions). Further, we find the de minimis principle inapplicable here. The de minimis exemption' is only available where a regulation would “yield a gain of trivial or no value.” Alabama Power Co., supra, at 361. Because of the lack of data, we cannot know whether exempting sites of less than five acres will indeed have only a de minimis effect. The dé minimis concept is based on the principle that the law does not concern itself with trifling matters. Id. at 360. We question its applicability in a situation such as this where the gains from application of the statute are being weighed against administrative burdens to the regulated community. See id. at 360-361 (implied authority to make cost-benefit decisions must derive from statute, and not general de minimis doctrine). Further, EPA’s claim that the five-acre exemption is de minimis is contradicted by the admission that even small construction sites can have a significant impact on local water quality. * The EPA acknowledges that “[o]ver a short period of time, construction sites can contribute more sediment to streams than was previously deposited over several decades.” 55 Fed. Reg. at 48,033. Withoút data supporting the expanded exemption, we owe no deference to EPA’s line-drawing. We thus hold that EPA’s choice of a five-acre limit is arbitrary and capricious, invalidate that portion of the rule exempting construction sites of five acres or less from permitting requirements, and remand for further proceedings.' 4. Exemption for oil and gas activities. The 1987 amendments created an exemption from the permit requirement for uncontaminated runoff from mining, oil and gas facilities. See Appendix, CWA § 402(i )(2), 33 U.S.C. §§ 1342(i)(2). Section 402(i)(2) states that a. permit is not required for discharges of storm water runoff from mining, oil or gas operations composed entirely of flows from conveyance systems used for collecting precipitation runoff and “which are not contaminated by contact with, or do not come into contact with any overburden, raw material, intermediate products, finished product, byproduct, or waste products”. NRDC claims that the November 1990 rule sets up an impermissible standard for determining contamination at oil and gas facilities. The relevant portion of the rule states that at these facilities, an operator is not required to submit a permit application unless the facility has had a discharge of a reportable quantity since November 1987, or contributes to a violation of a water quality standard. 55 Fed.Reg. 48,067 (to be codified at 40 C.F.R. § 122.26(c)(l)(iii)). A facility which has had a release of oil or a hazardous substance in excess of RQs since 1987 must submit a permit application. Id.; 55 Fed.Reg. at 48,029-30. NRDC claims that oil and gas operations should be subject to the stricter standards which apply to mining operations. It also objects to EPA’s use of RQs as the only test-for contamination of runoff from oil and gas storm water dischargers, claiming it is inconsistent with the legislative history. We conclude that the legislative history does not support NRDC’s position. The conference report states: [Pjermits are not required where storm-water runoff is diverted around mining operations or oil and gas operations and does not come in contact with overburden, raw material, product, or process wastes. In addition, where stormwater runoff is not contaminated by contact with such materials, as determined by the administrator, permits are also not required. With respect to oil or grease or hazardous substances, the determination of whether stormwater is “contaminated by contact with” such materials, as established by the Administrator, shall take into consideration whether these materials are present in such stormwater runoff in excess of reportable quantities under section 311 of the Clean Water Act ..., or in the case of mining operations, above natural background levels. H.R.Rep. No. 1004, 99th Cong., 2d Sess., at 151 (emphasis added). Thus, the EPA Administrator has discretion to determine whether or not storm water runoff at an oil, gas or mining operation is contaminated with two types of materials: (1) overburden, raw material, product, or process wastes and (2) oil, grease or hazardous substances. The report sets out factors for the Administrator to consider in determining contamination for the latter group of pollutants. NRDC first claims that because section 402(Z)(2) treats oil, gas and mining together, the EPA rule must do the same. NRDC’s second objection is based on its interpretation of the language in the conference report. Because the conference report lists RQs as only one factor to be taken into consideration, NRDC insists EPA cannot make it the only factor to measure contamination for oil and gas facilities. Both of these arguments must fail in light of the conference report, which gives the Administrator discretion to determine when contamination has occurred with respect to the substances listed in the statute, i.e., overburden, raw materials, waste products, etc. See CWA § 402(i)(2). The conference report states that the Administrator shall take certain factors into account, but the report, is clear that the determination of whether storm water is con-taminatéd is within the Administrator’s discretion. NRDC argues that the remarks of certain congressmen during congressional debate show that the mining, oil, and gas exemptions were to apply only if the discharges were entirely free of contaminants. We find these examples less persuasive than the clear language of the conference report. Moreover, in light of the discretion granted the Administrator in the conference report, we cannot say that the rule as promulgated is an arbitrary and capricious exercise of that discretion. NRDC also contends that Congress intended that EPA consider reportable quantities only in determining if a discharge is contaminated with oil, grease, or hazardous substances. Other pollutants, according to NRDC, must be found to contaminate the discharge if they exceed background levels. EPA did not, in fact, limit itself to reportable quantities in determining which oil or gas facilities must apply for a permit. The rule requires a permit for any facility which “[cjontributes to a violation of a water quality standard.” 40 C.F.R. § 122.-26(c)(l)(iii)(C). This requirement addresses contamination with substances other than oil and hazardous substances. We find no support in the statute or the legislative history for NRDC’s claim that, with respect to these substances, levels above background must be considered “contamination.” The conference report quoted above requires consideration of background levels of any pollutant only with respect to mining operations. D. Lack of Controls for Municipal Storm Water Discharge. NRDC contends that EPA has failed to establish substantive controls for municipal storm water discharges as required by the 1987 amendments. Because Congress gave the administrator discretion to determine what controls are necessary, NRDC’s argument fails. Prior to 1987, municipal storm water dis-chargers were subject to the same substantive control requirements as industrial and other types of storm water. In the 1987 amendments, Congress retained the existing, stricter controls for industrial storm water dischargers but prescribed new controls for municipal storm water discharge. CWA . § 402(p)(3)(A), (B), 33 ' U.S.C. § 1342(p)(3)(A)-(B). The Act states that permits for discharges from municipal storm sewers: (i) may be issued on a system- or jurisdiction-wide basis; (ii) shall include a requirement to effectively prohibit non-storm water discharges into the storm sewers; and (iii) shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator or the State determines appropriate for the control of such pollutants. Section 402(p)(3)(B), 33 U.S.C. § 1342(p)(3)(B) (emphasis added). NRDC charges that the EPA regulations accomplish neither of the goals above, i.e., they do not effectively prohibit non-storm water discharges nor do they require the controls described in If (iii), above. NRDC argues that Congress granted the moratorium precisely to give EPA the opportunity to develop new, substantive standards for storm water control of municipal sources and instead EPA wrote vague regulations containing no minimum criteria or performance standards. However, the language in If (iii), above, requires the Administrator or a state to design controls. Congress did not mandate a minimum standards approach or specify that EPA develop minimal performance requirements. NRDC also claims that the testing requirements are inadequate because there is only limited sampling at a limited number of sites. However, we must defer to EPA on matters such as this, where EPA has supplied a reasoned explanation of its choices. See 55 Fed.Reg. at 48,049. NRDC’s argument that the EPA rule is inadequate cannot prevail in the face of the clear statutory language and our standard of review. Congress could have written a statute requiring stricter standards, and it did not. We therefore reject NRDC’s argument that EPA’s storm water control regulations fail to comply with the statute. E. Lack of Notice and Comment on the Approval of Part 1 of Industrial Group Storm Water Applications. NRDC objects to the lack of opportunity for notice and comment before EPA approval of part 1 of group applications for industrial dischargers. Each member of a proposed group must submit part 1 of the application. If EPA approves part 1, only a small subset of the member facilities need submit part 2 of the application. 55 Fed.Reg. at 48,072 (to be codified at 40 C.F.R. 122.26(e)(2)). NRDC claims that because approval of part 1 waives the requirement of filing part 2 for most members of a group, EPA’s decision on part 1 is equivalent to a “rule” requiring notice and comment from the public. The issue thus presented is whether EPA’s decision on a part 1 group permit application is a “rule” as defined in 5 U.S.C. § 551(4) (1988) requiring public notice and opportunity to comment under 5 U.S.C. § 553 (1988), or is otherwise subject to the notice and comment requirement. NRDC argues that approval or disapproval of a part 1 application requires public comment because it has “general applicability” pursuant to 5 U.S.C. § 551(4) and because it will have a “palpable effect” in that it will relieve the majority of entities in the group from submitting data in part 2 of the application. NRDC cites NRDC v. EPA, 683 F.2d 752 (3rd Cir.1982) and Council of Southern Mountains, Inc. v. Donovan, 653 F.2d 573 (D.C.Cir.1981) in support of its argument. Both cases involved the postponement of regulations. See NRDC, 683 F.2d at 753-54, 764 (indefinite postponement of effective date of final amendments to regulations dealing with the discharge of toxic pollutants requires notice and comment because it has a substantial impact on the public and the industry); Council of Southern Mountains, Inc., 653 F.2d at 575, 580 n. 28 (deferral of implementation of regulations requiring coal operators to supply life-saving equipment ordinarily would require notice and comment because it has a “palpable effect” upon the industry and the public). We find these cases to be distinguishable. Both involve the postponement of rules of general applicability to an entire industry, or to a large class of pollutants. In contrast, although the part 1 application process will relieve some entities from the need to furnish further data, the decision is specific to a particular permit application and approval of a preliminary application will not implement, interpret or prescribe any general law or policy pursuant to 5 U.S.C. § 551(4). Rulemaking ordinarily involves “broad judgments, legislative in nature rather than the resolution of a particular dispute of facts.” Washington Utilities & Transportation Com’n v. Federal Communication Commission, 513 F.2d 1142, 1160 (9th Cir.1975), cert. denied, 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54 (1975). The decision to approve a part 1 permit application, although it may affect a large number of applicants, is nevertheless focused on a specific factual question: whether the application adequately designates a representative smaller group subject to the more extensive data gathering requirements in part 2 of the application. See 55 Fed.Reg. at 48,028. Because the decision involves a discrete, factual issue, the better view is that it is neither a rule nor otherwise subject to the notice and comment requirement. Because approval of a part 1 application is essentially a factual determination, we hold that EPA’s group permit application process for industrial dischargers is not invalid by its failure to provide for notice and comment. III. CONCLUSION In summary, we grant and deny relief as follows: 1. “Deadlines” issue. We grant the request for declaratory relief and deny the request for injunctive relief. We deny the request to place small, medium and large municipalities on the same permitting schedule. We hold that EPA’s failure to include deadlines for permit approval or denial and compliance consistent with CWA § 402(p) is arbitrary and capricious. • 2. Exclusion of Sources from Regulation. We uphold the definition of “municipal separate storm sewers serving a population.” We hold that the exemption for construction sites of less than five acres is arbitrary and capricious and remand for further proceedings. Based on the record before us, we vacate that portion of the rule regulating “light industry” and remand for further proceedings. 3. Other issues. We uphold the rule as to oil and gas operations and storm water control. We further hold that EPA approval of part 1 of a group application for an industrial discharger is not a rule requiring notice and comment from the public. Petition for Review GRANTED IN PART and DENIED IN PART. APPENDIX A CWA § 402, 33 USC A § 1342 (i)Limitation on permit requirement (2)Stormwater runoff from oil, gas, and mining operations The Administrator shall not require a permit under this section, nor shall the Administrator directly or indirectly require any State to require a permit, for discharges of stormwater runoff from mining operations or oil and gas exploration, production, processing, or treatment operations or transmission facilities, composed entirely of flows which are from conveyances or systems of conveyances (including but not limited to pipes, conduits, ditches, and channels) used for collecting and conveying precipitation runoff and which are not contaminated by contact with, or do not come into contact with, any overburden, raw material, intermediate products, finished product, byproduct, or waste products located on the site of such operations. (p) Municipal and industrial stormwater discharges (1) General rule Prior to October 1, 1992, the Administrator or the State (in the case of a permit program approved under this section) shall not require a permit under this section for discharges composed entirely of stormwa-ter. (2) Exceptions Paragraph (1) shall not apply with respect to the following stormwater discharges: (A) A discharge with respect to which a permit has been issued under this section before February 4, 1987. (B) A discharge associated with industrial activity. (C) A discharge from a municipal separate storm sewer system serving a population of 250,000 or more. (D) A discharge from a municipal separate storm sewer system serving a population of 100,000 or more but less than 250,000 . (E) A discharge for which the Administrator or the State, as the case may be, determines that the stormwater discharge contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States. (3) Permit requirements (A) Industrial discharges Permits for discharges associated with industrial activity shall meet all applicable provisions of this section and section 1311 of this title. (B) Municipal discharge Permits for discharges from municipal storm sewers— (i) may be issued on a system- or jurisdiction-wide basis; (ii) shall include a requirement to effectively prohibit non-stormwater discharges into the storm sewers; and (iii) shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator or the State determines appropriate for the control of such pollutants. (4) Permit application requirements (A) Industrial and large municipal discharges Not later than 2 years after February 4, 1987, the Administrator shall establish regulations setting forth the permit application requirements for stormwater discharges described in paragraphs (2)(B) and (2)(C). Applications for permits for such discharges shall be filed no later than 3 years after February 4, 1987. Not later than 4 years after February 4, 1987, the Administrator or the State, as the case may be, shall issue or deny each such permit. Any such permit shall provide for compliance as expeditiously as practicable, but in no event later than 3 years after the date of issuance of such permit, (B) Other municipal discharges Not later than 4 years after February 4, 1987, the Administrator shall establish regulations setting forth the permit application requirements for stormwater discharges described in paragraph (2)(D). Applications for permits for such discharges shall be filed no later than 5 years after February 4, 1987. Not later than 6 years after February 4, 1987, the Administrator or the State, as the case may be, shall issue or deny each such permit. Any such permit shall provide for compliance as expeditiously as practicable, but in no event later than 3 years after the date of issuance of such permit. (5) Studies The Administrator, in consultation with the States, shall conduct a study for the purposes of— (A) identifying those stormwater discharges or classes of stormwater discharges for which permits are not required pursuant to paragraphs (1) and (2) of this subsection; (B) determining, to the maximum extent practicable, the nature and extent of pollutants in such discharges; and (C) establishing procedures and methods to control stormwater discharges to the extent necessary to mitigate impacts on water quality. Not later than October 1, 1988, the Administrator shall submit to Congress a report on the results of the study described in subparagraphs (A) and (B). Not later than October 1, 1989, the Administrator shall submit to Congress a report on the results of the study described in subparagraph (C). (6)Regulations Not later than October 1, 1992, the Administrator, in consultation with State and local officials, shall issue regulations (based on the results of the studies conducted under paragraph (5)) which designate stormwater discharges, other than those discharges described in paragraph (2), to be regulated to protect water quality and shall establish a comprehensive program to regulate such designated sources. The program shall, at a minimum, (A) establish priorities, (B) establish requirements for State stormwater management programs, and (C) establish expeditious deadlines. The program may include performance standards, guidelines, guidance, and management practices and treatment requirements, as appropriate. . National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 55 Fed.Reg. 47,990 (1990) (to be codified at 40 C.F.R. § 122.26); National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges; Application Deadline for Group Applications, 56 Fed.Reg. 12,098 (1991) (to be codified at 40 C.F.R. § 122.26(e)). . The Act is popularly known as the Clean Water Act or the Federal Water Pollution Control Act. 33 U.S.C. § 1251. For more background on the CWA, see EPA v. State Water Resources Control Bd., 426 U.S. 200, 202-09, 96 S.Ct. 2022, 2023-26, 48 L.Ed.2d 578 (1976); Sierra Club v. Union Oil of California, 813 F.2d 1480, 1483 (9th Cir.1987), vacated on other grounds, 485 U.S. 931, 108 S.Ct. 1102, 99 L.Ed.2d 264 (1988); and Natural Resources Defense Council v. Train, 510 F.2d 692, 695-97 (D.C. Cir.1975). . The Nationwide Urban Runoff Program (NURP) conducted from 1978 through 1983 found that urban runoff from residential, commercial and industrial areas produces a quantity of suspended solids and chemical oxygen demand that is equal to or greater than that from secondary treatment sewage plants. 55 Fed.Reg. at ,47,991. A significant number of samples tested exceeded water quality criteria for one or more pollutants. Id. at 47,992. Urban runoff is adversely affecting 39% to 59% of the harvest-limited shellfish beds in the waters off the East Coast, West Coast and in the Gulf of Mexico. 56 Fed.Reg. at 56,548. . See 132 Cong. Rec. 32,381 (1986). . Senator Stafford, speaking in favor of the conference report for the Water Quality Act, noted that “EPA should have developed this program long ago. Unfortunately, it did not. The conference substitute provides a short grace period during which EPA and the States generally may not require permits for municipal separate storm sewers." 132 Cong. Rec. 32,381 (1986). Senator Chafee stated “[t]he Agency has been unable to move forward with a [storm water discharge control] program, because the current law did not give enough guidance to the Agency. This provision provides such guidance, and I expect EPA to move rapidly to implement this control program.” 133 Cong. Rec. 1,264 (1987). .Pub.L. No. 100-4, 101 Stat. 7 (1987) (codified as amended in scattered sections of 33 U.S.C.). . Large municipal systems are those serving a population of 250,000 or more. § 402(p)(2)(C). . Since NRDC filed this action, Congress has passed certain legislation affecting some of the deadlines at issue. Congress ratified the date of September 30, 1991 for part 1 of group applications for industrial dischargers. See Dire Emergency Supplemental Appropriations Act of 1991, Pub.L. No. 102-27, § 307, 105 Stat. 130, 152 (1991). Section 1068 of the Intermodal Surface Transportation Efficiency Act of 1991 (“ISTEA”) clarifies the deadlines for storm water discharges associated with industrial activity from facilities owned or operated by a municipality. Pub.L. No. 102-240, § 1068, 105 Stat.1914, 2007 (1991). ISTEA deadlines are being reviewed in a separate case. Nothing in this opinion should he viewed as requiring EPA to comply with deadlines that have been altered or superseded by the ISTEA. . See 55 Fed.Reg. at 48,071-72 (to be codified at 40 C.F.R. § 122.26(e)); 56 Fed.Reg. at 12,100 (to be codified at 40 C.F.R. § 122.26(e)(2)(iii)). EPA changed certain of these deadlines after this case was submitted. These changes are the subject of a separate case. The EPA rules at issue set no date for final approval or denial of applications from municipal or industrial dischargers, nor for compliance by these regulated entities. See 55 Fed. Reg. at 48,072. . NRDC initially claimed that this extension was unlawful because it was granted without proper notice and comment. However, Congress approved this extended deadline in a supplemental appropriations bill. Dire Emergency Supplemental Appropriations Act of 1991, Pub.L. No. 102-27 § 307, 105 Stat. 130, 152 (1991). This Act moots the procedural and substantive challenge to this extended deadline. . In addition, pursuant to the statute, compliance deadlines applicable to each facility shall be contained in its permit. .The rule also permits the Administrator to include certain other systems as part of a medium or large system due to the physical interconnections between the systems, their locations, or certain other factors. See 40 C.F.R. § 122.-26(b)(4)(iii), (iv) and (b)(7)(iii), (iv). . Storm sewers located within the boundaries of a city might be part of a state highway system, a flood control district, or a system operated by the state or county. See 55 Fed. Reg. at 48,041. . See, e.g., 133 Cong. Rec. 991 (1987) (statement of Rep. Stangeland). . "Reportable Quantities" (RQs) are not effluent guidelines setting up permissible limits for pollutants. Rather, they are quantities the discharge of which "may be harmful to the public health or welfare of the United States." CWA § 311(b)(4), 33 U.S.C. § 1321(b)(4). EPA has established RQs for a large number of substances, pursuant to both CWA section 311, 33 U.S.C. § 1321, and the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) section 102, 42 U.S.C. § 9602. See 40 C.F.R. Parts 110, 117, 302. The operator of any vessel or facility which releases the RQ of any substance must immediately notify the National Response Center. See, e.g., 40 C.F.R. § 110.10. . Operators of mines must submit permit applications whenever storm water discharges come into contact with overburden, waste products, etc. 40 C.F.R. § 122.26(c)(l)(iv). .The requirements for permit applications are set forth at 40 C.F.R. § 122.26(d). Individual NPDES permit writers (EPA or state officials) will decide whether application proposals are adequate. Applicants must submit information on source control methods and estimate the annual pollutant load reduction to be achieved from their proposed management programs, but they are not required to achieve any specified level of reduction of any pollutants. See 55 Fed.Reg. at 48,070-71. . We base our holding on NRDC’s challenge to the regulations at issue. Whether a specific permit complies with the requirements of section 402(p)(3)(B) would, of course, be another matter not controlled by this decision. . Part I must include the identity of the group's participants, a description of .the participants’ industrial activities, a list of significant materials exposed to precipitation and the identity of the subset of the group’s members who will submit quantitative data in part 2 of the application. 55 Fed.Reg. at 48,067. . A rule means "the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency....” 5 U.S.C. § 551(4).

Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency

O’SCANNLAIN, Circuit Judge, concurring in part and dissenting in part: I concur in Parts I, II.A, II.C.l, II.C.4, II.E, and much of Part II.B of the majority opinion. I dissent from Part II.B.2.C, directing EPA to issue supplemental regulations. I dissent also from Parts II.C.2 and II.C.3, in which the court invalidates EPA’s exclusion of storm water discharges from certain light industrial and small construction sites from the definition of “discharges associated with industrial activity.” Finally, I concur in the result, but not the reasoning, of Part II.D, holding that EPA has not acted unlawfully by failing to include specific control requirements in the permit application regulations. I The majority holds that EPA has violated statutory requirements by failing to set dates for approval of, and compliance with, permits as part of its permit application program. Ante at 1300. Despite the holding in Part II.B.2.b that injunctive relief is inappropriate (with which I agree), the majority in Part II.B.2.C orders EPA to issue supplemental regulations setting such deadlines immediately. I am not convinced that the statute requires EPA to set these deadlines as part of the permit application process. The provision at issue reads, in relevant part: (4) Permit application requirements (A) Industrial and large municipal discharges Not later than 2 years after February 4, 1987, the Administrator shall establish regulations setting forth the permit application requirements for stormwater, discharges described in paragraphs (2)(B) and (2)(C). Applications for permits for such discharges shall be filed no later than 3 years after February 4, 1987. Not later than 4 years after February 4, 1987, the Administrator or the State, as the case may be, shall issue or deny each such permit. Any such permit shall provide for compliance as expeditiously as practicable, but in no event later than 3 years after the date of issuance of such permit. (B) Other municipal discharges Not later than 4 years after February 4, 1987, the Administrator shall establish regulations setting forth the permit application requirements for stormwater discharges described in paragraph (2)(D). Applications for permits for such discharges shall be filed no later than 5 years after February 4, 1987. Not later than 6 years after February 4, 1987, the Administrator or the State,.as the case may be, shall issue or deny each such permit. Any such permit shall provide for compliance as expeditiously as practicable, but in no event later than 3 years after the date of issuance of such permit. CWA § 402(p)(4); 33 U.S.C. § 1342(p)(4) (1988). While the statute establishes a time line EPA must follow, it does not, in my view, require that EPA include the deadline for permit approval in the permit application regulations. I agree that, given EPA’s past delays and the fact that the statutory dates for issuance or denial of permits are now long past, it is appropriate for this court to declare that the statute requires EPA to issue or deny permits within one year of the application deadline. I do not, however, see that any purpose is served by requiring EPA to issue supplemental regulations setting out these deadlines, and I doubt our authority to do so. With respect to compliance deadlines, the statute contemplates that such deadlines will be set in individual permits as they are issued. See CWA § 402(p)(4)(A), (B) (“Any such permit shall provide for compli-ance_”). Each permit must contain a compliance deadline, which may not exceed three years from the date of issuance. Nothing in the statute requires EPA to establish compliance deadlines now, before any permits have been issued. Accordingly, in my view, NRDC’s challenge to the lack of compliance deadlines in EPA’s current regulations is premature. I therefore dissent from Part II.B.2.C of the majority opinion. II I dissent also from Parts II.C.2 and II. C.3. In my view, EPA’s definition of “discharge associated with industrial activity” is a reasonable construction of an ambiguous statute, entitled to deference. While my colleagues acknowledge that we may not overturn an agency rule that represents a “permissible construction” of a statute, ante at 1297 (quoting Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 843, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984)), they fail to apply that axiom. A EPA’s rule excludes from the permitting requirement certain light industry facilities at which “areas where material handling equipment or activities, raw materials, intermediate products, final products, waste materials, byproducts, or industrial machinery” are not exposed to storm water. See 40 C.F.R. § 122.26(b)(14). EPA determined that discharges from such facilities do not fall within the definition of “discharges associated with industrial activity.” In my view, this determination was reasoriable. The majority concedes that the statute does not define “discharge associated with industrial activity.” Ante at 1304. The operative phrase, as my colleagues note, is “associated with.” See id. For purposes of evaluating the light industry exemption, I concede that manufacturing falls within the generally accepted meaning of “industrial activity,” and that many of the facilities exempted by the EPA rule are manufacturers. Nonetheless, that concession does not compel the conclusion that discharges from such facilities are “associated with industrial activity.” The majority concludes, without explanation, that the phrase “discharges associated with industrial activity” is “very broad.” Ante at 1304. Neither the plain meaning of the term “associated” nor the legislative history of the statute support this conclusion. “Associated with” means closely related to or connected with. See Webster’s Ninth New Collegiate Dictionary 110 (1986). To the extent it casts any light on the subject, the legislative history supports a narrow reading of the phrase “associated with.” Four members of the House, in the course of floor debates on the measure both before and after President Reagan’s veto, explained that: [a] discharge is associated with industrial activity if it is directly related to manufacturing, processing or raw materials storage areas at an industrial plant. Discharges which do not meet this definition include those discharges associated with parking lots and administrative and employee buildings. 133 Cong.Rec. 985 (1987) (statement of Rep. Hammerschmidt) (emphasis added). The underscored language suggests that Congress intended to regulate only discharges directly related to certain activities at industrial facilities. EPA’s interpretation, that discharges are “directly related” to these activities only if storm water may reasonably be expected to come into contact with them before its discharge, is eminently logical. The majority opinion interprets the exclusion of parking lots as an expression of congressional intent “to exclude only those facilities or parts of a facility that are completely nonindustrial.” Ante at 1304. My colleagues’ reliance on the second sentence of the statement quoted above to establish this intent, however, is misplaced. The sentence relied on cannot assist us in our search for the meaning of “associated with” because it employs that very term. Moreover, it does not pretend to establish an exhaustive list of areas excluded from regulation. Legislators listed discharges from parking lots and administrative and employee buildings as among' those not directly related to industrial activity; no one suggested that only discharges associated with those structures were to be excluded. EPA’s definition is consistent with the plain words of the statute and, to the extent any intent is discernible, the congressional intent. EPA has defined the term “storm water discharge associated with industrial activity” to cover only those discharges reasonably expected to come into contact with industrial activities. A large number of facilities automatically fall within EPA’s definition and are required to apply for permits. Because facilities falling within certain specified classifications under the Standard Industrial Classification manual generally conduct their operations entirely indoors, minimizing the likelihood of contact with storm water, EPA has not automatically included them within the regulations. However, these facilities are required to apply for permits if “areas where material handling equipment or activities, raw materials, intermediate products, final products, waste materials, byproducts, or industrial machinery at these facilities are exposed to storm water.” 40 C.F.R. § 122.26(b)(14). If a storm water discharge is in fact directly related to or associated with the industrial activity carried on at a facility falling within the light industry category, the facility must obtain a permit. In my view, the statute’s treatment of oil and gas facilities supports EPA’s reading of the term “associated with industrial activity.” Congress specifically exempted from the permit requirement discharges from oil and gas facilities and mining operations which have not come in contact with raw materials, finished products; or waste products. CWA § 402(Z)(2). This section indicates a congressional intent to exempt uncontaminated discharges which have not come into contact with “industrial activities” from regulation. For oil, gas, and mining operations, Congress in this section supplied a specific, and quite limited, definition of “industrial activities.” For other facilities, that definition was left to the discretion of EPA, which has adopted a much broader definition, encompassing contact with such things as industrial machinery- and materials handling equipment. See 40 C.F.R. § 122.26(b)(14). I do not mean to suggest that the majority’s construction of the statute is untenable. It may even be preferable to the reading chosen by the agency. Nonetheless, in my view the statute is ambiguous and the legislative history does not demonstrate any clear congressional intent. The question before this court, therefore, is not whether “the agency construction was the only one it permissibly could have adopted” or even whether it is the “reading the court would have reached if the question initially had arisen in a judicial proceeding.” Chevron, U.S.A. v. NRDC, 467 U.S. 837, 843 n. 11, 104 S.Ct. 2778, 2782 n. 11, 81 L.Ed.2d 694 (1984). We need only inquire if the agency’s construction is a permissible one. Id. at 843, 104 S.Ct. at 2781. EPA’s definition falls well within permissible bounds, and should be upheld. B Although the issue is closer, I also am not persuaded that EPA’s exemption for construction sites under five acres should be struck down. EPA has not conceded that “construction activity is industrial in nature.” Ante at 1306. In the preamble to its final rule, EPA noted that “Construction activity at a high level of intensity is comparable to other activity that is traditionally viewed as industrial, such as natural resource extraction.” 55 Fed.Reg. 48,033 (1990) (emphasis added). EPA explained that it was “attempting to focus [regulation] only on those construction activities that resemble industrial activity.” 55 Fed.Reg. at 48,035 (emphasis added). Neither NRDC nor the majority point to anything in the statute or the legislative history that would require the agency to define “industrial activity” as including all construction operations. Accordingly, I believe deference is due EPA’s definition, provided it is not arbitrary, capricious, or manifestly contrary to the statute. Chevron, U.S.A., 467 U.S. at 844, 104 S.Ct. at 2782. In trying to determine when construction should be treated as industrial activity, EPA considered a number of possible approaches. See 55 Fed.Reg. at 48,035. Exempting construction that would be completed within a certain designated time frame was deemed inappropriate, because the work could be both intensive and expansive but nonetheless take place over a short period of time. Basing the limit on quantity of soil removed was also rejected as not relating to the amount of land surface disturbed. EPA finally settled on the surface area disturbed by the construction project as a feasible and appropriate mechanism for “identifying sites that are [sic] amount to industrial activity.” 55 Fed. Reg. at 48,036. Having determined that not all construction amounts to industrial activity, and that the appropriate basis for differentiation is land area disturbed, EPA then had to determine where to draw the line. Initially, EPA proposed to exempt all construction operations disturbing less than one acre of land, as well as single family residential projects disturbing less than five acres. 53 Fed.Reg. 49,431 (1988). In the final rule, however, EPA adopted a five-acre minimum for all construction projects. 55 Fed. Reg. 48,066 (1990); 40 C.F.R. § 122.-26(b)(14)(x). Admittedly, the final rule contains little in the way of justification for treating two-acre sites differently than five-acre ones, but that does not necessarily make it arbitrary and capricious. Line-drawing is often difficult. NRDC was apparently willing to accept EPA’s proposed one-acre/five-acre rule. Although NRDC now challenges the blanket five-acre rule, it offers no evidence that sites excluded from the permitting requirement constitute “industrial activity.” In such absence of any evidence in the record undermining EPA’s conclusion on an issue squarely within its expertise, I believe the rule must be upheld. Ill Finally, while I concur in the result reached by the majority in Part II.D, rejecting NRDC’s claim that EPA has unlawfully failed to require substantive controls on municipal discharges, I disagree with the majority’s reasoning. In my view, NRDC’s claim is premature, and we should decline to address its merits. NRDC contends that the 1987 amendments require EPA to establish substantive controls for municipal storm water discharges. In support of this argument, NRDC relies on CWA § 402(p)(3)(B), 33 U.S.C. § 1342(p)(3)(B), which provides: Permits for discharges from municipal storm sewers— ****** (ii) shall include a requirement to effectively prohibit non-stormwater discharges into the storm sewers; and (iii) shall require controls to reduce the discharge of pollutants to the maximum extent practicable.... This section refers only to permits, and says nothing about permit applications. Because EPA has yet to issue any permits, NRDC’s claim on this point is premature. In the absence of any indication to the contrary, we must assume that any permit issued will comply with all applicable statutory requirements. The statute does not require that EPA detail the substantive controls to be imposed when establishing permit application requirements. Accordingly, I would reject NRDC’s claim without reaching the issue of the Administrator’s discretion in selecting those controls. IV In sum, I join much of my colleagues’ opinion. However, I would not require EPA to issue supplemental regulations detailing the time line for issuance of and compliance with permits, and I would uphold EPA’s definition of “discharge associated with industrial activity.” Finally, I would reject NRDC’s claim that EPA is required to detail control measures in the permit application regulations on the grounds that the statute requires control measures only in the permits themselves. . This statement was repeated verbatim by Reps. Stangeland and Snyder. 133 Cong. Rec. at 991-92; 132 Cong. Rec. at 31,959, 31,964 (1986). Rep. Rowland offered a slight variation on the theme: One of the discharge categories is "a discharge associated with an industrial activity.” A discharge is not considered to be associated with industrial activity unless it is directly related to manufacturing, processing, or raw materials storage areas at an industrial plant. Such discharges include (sic] those from parking lots and administrative areas and employee buildings. 132 Cong. Rec. at 31,968. Rep. Rowland apparently misspoke; he probably meant, like the other legislators who addressed the topic, to say “[s]uch discharges do not include” those from parking lots. . Thus, nothing turns on the assumption, attacked by my colleagues as unsupported by the record, ante at 1304, that industrial activities at this category of facilities will take place largely indoors. Where the assumption does not hold true, the permit requirement applies with full force. I also note that NRDC has pointed us to no evidence undermining EPA's assumption. Unlike my colleagues, I decline to assume that EPA will not carry out its responsibility to identify and to require permits of facilities where industrial activities are in fact exposed to storm water, or that such facilities will ignore their statutory duty to apply for permits. Should that occur, a lawsuit challenging EPA’s failure to enforce its regulations might well be in order. An unsubstantiated suspicion that EPA may not vigorously enforce its regulations, however, does not make those regulations arbitrary or capricious. . EPA did admit that "[e]ven small construction sites may have a significant negative impact on water quality in localized areas,” 55 Fed.Reg. at 48,033. In the absence of any indication of what EPA meant by “small," however, that statement does not undermine EPA’s exemption of sites under five acres. . Because I conclude that the rule falls within the permissible bounds of the statutory definition of "discharges associated with industrial activity,” I need not consider the applicability of the de minimis exception.

Natural Resources Defense Council, Inc. v. U.S. Environmental Protection Agency

OPINION OF THE COURT GARTH, Circuit Judge: These consolidated petitions challenge an amended final rule of the Environmental Protection Agency (EPA), known as the removal credit rule, 49 Fed.Reg. 31212 (1984) (codified at 40 C.F.R. § 403.7), promulgated pursuant to the Federal Water Pollution Control Act (“FWPCA” or “Clean Water Act”) of 1977, Pub.L. No. 95-217, 91 Stat. 1566 (codified at 33 U.S.C. 1251 et seq.). The Clean Water Act of 1972 set' as a national goal the elimination, by 1985, of the discharge of pollutants into the nation’s navigable waters. Pub.L. No. 92-500, 86 Stat. 816, § 101(a)(1) (codified at 33 U.S.C. § 1251(a)(1)). In 1977, recognizing that the 1972 Act’s regulatory mechanism for the control of toxics “ha[d] failed,” Congress amended the Clean Water Act to clarify and strengthen its provisions for dealing with toxic pollutants. Leg.Hist. 326-27 (comments of the House manager of the bill, Rep. Roberts); see also id. at 369 (statement of Rep. Clausen); id. at 427 (statement of Sen. Muskie). One aspect of the 1977 Act’s strengthened program to control toxic pollutants was a requirement that an indirect discharger i.e. an industrial discharger whose wastes flow into a public sewage system rather than directly into navigable waters, had to “pretreat” its waste waters so as to achieve, together with the Publicly Owned Treatment Works (POTW) that treated the waste before final discharge into navigable waters, the same level of toxics removal as was required of a direct discharger, which discharged directly into a river, lake, or ocean. At the same time, the Act allowed the indirect discharger to receive a “removal credit” from the POTW for the amount of waste removed from the stream of waste water by the POTW itself. 33 U.S.C. § 1317(b)(1). This provision, designed to avoid redundant treatment, permits an increased amount of pollutants to flow from the indirect discharger’s plant to the municipal treatment plant provided that the additional pollutants are removed by the municipal plant. By this process, the amount of pollutants ultimately discharged by the combination of the indirect discharger and the POTW will be no greater than the amount discharged by the direct dis-charger. The Act also required EPA to develop regulations for the disposal and utilization of POTW sewage sludge, so as to prevent contamination of the sludge with toxics removed from the effluent flowing through the POTW, and so as to encourage the productive recycling of sludge. In furtherance of this goal, the Act provided that POTWs could not grant removal credits to indirect dischargers for the POTW’s removal of toxics from the liquid waste stream if this removal and consequent transfer of toxics to the POTW sludge would render the sludge toxic and thus prevent sludge disposal in accordance with those regulations. 33 U.S.C. § 1317(b)(1). NRDC challenges four aspects of the removal credit rule. First, it argues that EPA’s method of calculating waste removal by POTWs violates the statutory requirement that direct and indirect dischargers be held to the same standard. Second, it argues that EPA’s decision to ignore sewer overflow events in calculating the amount of toxic waste removed by a POTW violates the same requirement. Third, NRDC claims that EPA’s action in modifying the test for determining when a credit must be withdrawn violates the Administrative Procedure Act, 5 U.S.C. § 551 et seq., and the Clean Water Act, 33 U.S.C. § 1251 et seq. Fourth, NRDC questions whether EPA may put into effect a relaxed removal credit rule when the sludge regulations that are a precondition for the issuance of such credits have not been promulgated. In each of these areas, we conclude that EPA’s 1984 removal credit regulations fail to meet statutory requirements. Furthermore, even extending the utmost deference to the Agency, we conclude that the promulgation of these regulations on the basis of the administrative record before us is arbitrary and capricious. Thus we grant NRDC’s petition for review. In contrast to NRDC, Petitioners Cerro Copper and Village of Sauget challenge the regulations as too strict and inflexible to take into account situations such as theirs. The petitions of Cerro Copper and the Village of Sauget will be denied. I. In order to understand the issues presented on this appeal, it is helpful to trace the history of the statute and regulations which were designed to eliminate the discharge of pollutants into our waters. A. The removal credit rule at issue here is a part of a complex regulatory framework mandated by the Federal Water Pollution Control Act Amendments of 1972 and 1977, 33 U.S.C. §§ 1251 et seq. The statute calls for a two-phase program to limit discharges of effluents. Direct dischargers of toxic wastes were to comply with the Best Practicable Control Technology (BPT) by July 1, 1977. 33 U.S.C. §§ 1311(b)(1)(A), 1314(b)(1). Between 1983 and 1987, direct dischargers of toxic wastes were to meet the more stringent standards consistent with the Best Available Technology economically achievable (BAT). 33 U.S.C. § 1311(b)(2). The statute also mandated that the EPA set effluent limitations for POTWs engaged in the treatment of municipal sewage or industrial wastewater. Id. §§ 1311(b)(1)(B)-(C), 1314(d)(1). Such limitations were to result in equal levels of treatment for all toxic discharges, whether issued directly into navigable waters or channelled by a sewage system through a POTW. Because secondary treatment by POTWs cannot deal adequately with toxic pollutants, the statute required that EPA establish national pretreatment standards, i.e. standards to which an indirect discharger must conform in treating its waste before such waste reaches the POTW. Those standards, applicable to indirect dischargers, provide for pretreatment which is equivalent to BAT standards. 33 U.S.C. 1317(b)(1). In order to avoid redundant treatment by the indirect discharger and the POTW (“treatment for treatment’s sake,” Leg. Hist. 343), section 307(b)(1) of the 1977 Act, 33 U.S.C. § 1317(b)(1), requires that the POTW be authorized to give credit to the indirect discharger for removal of pollutants achieved by the POTW. The removal credit provision thereby equates the amount of pollutants removed by the combined treatment of the POTW and the indirect discharger with the amount of pollutants removed by the direct discharger operating under the relevant BAT standard. 33 U.S.C. § 1317(b)(1). The removal credit provision was added to the statute by the Clean Water Act of 1977, Pub.L. No. 95-217, 91 Stat. 1589. That law was enacted in response to Congress’s recognition of the growing seriousness of the problems of toxic pollution, and of the woeful inadequacy of the 1972 Act in dealing with them. Leg.Hist. 326-27, 454-55, 862-65. The 1977 Act strengthened the controls over toxic pollutants in several ways. The 1977 Act explicitly codified the toxics consent decree issued by the District Court for the District of Columbia. That decree resulted from litigation brought by environmental groups to challenge EPA’s failure to promulgate the effluent standards mandated for toxic substances by the 1972 Act. See NRDC v. Train, 8 Env’t Rep.Cas. (BNA) 2120 (D.D.C.1976), modified sub nom. NRDC v. Costle, 12 Env’t Rep.Cas. (BNA) 1833 (D.D.C.1979), modified sub nom. NRDC v. Gorsuch, No. 72-2153 (D.D.C. Oct. 26, 1982), modified sub nom. NRDC v. Ruckelshaus, No. 73-2153 (D.D.C. Aug. 2, 1983 and Jan. 6, 1984). Following that decree, Congress required that BAT effluent guidelines, applicable to direct dischargers, be developed by July 1, 1980 for the 65 toxic pollutants listed in the decree. Pub.L. No. 95-217, § 53(a), 91 Stat. 1589 (codified at 33 U.S.C. 1317(a)(2)). Also following the toxics decree, the 1977 Act amended section 307(b)(1) of the Act, 33 U.S.C. 1317(b)(1), to require EPA to promulgate pretreatment regulations for indirect dischargers analogous to the BAT standards for direct dischargers. Congress stressed that pretreatment standards had to be based on BAT or more stringent limits. See 33 U.S.C. § 1317(a); Leg.Hist. at 271, 342, 403, 461, 690. While strengthening and clarifying the pretreatment requirements for toxics, Congress added the following provision to the statute, thus providing for removal credits to avoid redundant treatment: If, in the case of any toxic pollutant under subsection (a) of this section introduced by a source into a publicly owned treatment works, the treatment by such works removes all or any part of such toxic pollutant and the discharge from such works does not violate that effluent limitation or standard which would be applicable to such toxic pollutant if it were discharged by such source other than through a publicly owned treatment works, and does not prevent sludge use or disposal by such works in accordance with section 1345 of this title, then the pretreatment requirements for the sources actually discharging such toxic pollutant into such publicly owned treatment works may be revised by the owner or operator of such works to reflect the removal of such toxic pollutant by such works. 33 U.S.C. § 1317(b)(1). In addition, Congress sought to ensure that sewage sludge, instead of becoming a depository for toxic pollutants, should be usable as fertilizer or for other productive purposes. It did so by amending section 405 of the Clean Water Act to require EPA to develop regulations for sludge use or disposal within one year of the statute’s enactment. 33 U.S.C. § 1345(d). (See Exhibit B.) In conjunction with this amendment to section 405, Congress also amended section 307(b)(1) of the Act to ensure that EPA did not, in the course of administering the removal credit program, undermine the objective of rendering sewage sludge nontoxic and usable. By the same amendment, quoted above, that provided for removal credits, Congress also prohibited the granting of removal credits if such credits would lead to sludge contamination that would prevent the use or disposal of sludge in conformity with the section 405 regulations. FWPCA 307(b)(1), 33 U.S.C. 1317(b)(1). B. The removal credit regulation at issue here allows POTWs to grant removal credits to indirect dischargers so that the indirect discharger may increase its discharges of the pollutant by the amount that the POTW removes. The statute mandates that such credits be equal to the amount of toxics consistently removed by the POTW. The regulation requires that each POTW first determine its removal efficiency (or “consistent removal rate”) for each regulated pollutant. This is generally done through a process of measuring the concentration of a given pollutant found in the waste flowing into a POTW (i.e., the in-fluent) and then measuring its concentration in the waste flowing out of the POTW (i.e., the effluent). Removal is expressed as a percentage of the amount in the in-fluent. If, for example, a POTW consistently removes 60% of a particular pollutant that flows into it, it can grant a 60% credit to the indirect discharger. The indirect discharger would then be permitted to discharge more than twice as much of that pollutant to the POTW than it would otherwise have been allowed to discharge. The removal credit rule is one part of the General. Pretreatment Regulations for Existing and New Sources of Pollution, 40 C.F.R. § 403.1-16 (1984). These pretreatment regulations provide the framework for implementation of another set of regulations, the Categorical Pretreatment Standards, which establish specific limits for the discharge of particular toxic pollutants. The present removal credit rule is the fourth version of the rule promulgated by EPA on this subject. The first version, promulgated in 1973, was sketchy. It foreshadowed the statutory removal credit provision of section 1317(b)(1) enacted in 1977. 38 Fed.Reg. 30982-84 (1973). In 1977, EPA promulgated more complete regulations. Each of the two succeeding versions following the 1977 version has further relaxed the requirements that POTWs and indirect dischargers are required to meet. From the first regulations through all subsequent revisions, the regulations purport to require that indirect dischargers be held to the same standard as direct dischargers, subject to credit for removal of toxics by the POTW. In 1977, following the issuance of the toxics consent decree in NRDC v. Train, 8 Env’t Rep.Cas. (BNA) 2120, EPA proposed more developed pretreatment regulations. 42 Fed.Reg. 6176 (1977). While this proposal was pending, Congress enacted the Clean Water Act amendments of 1977, adding the removal credit provision to section 307(b)(1). After extensive comment and participation by interested parties, including four public hearings and sixteen public meetings, which generated testimony and comments from 400 individuals and groups, EPA, on June 26, 1978, promulgated its second removal credit regulation as a part of the General Pretreatment Regulations on June 26, 1978. 43 Fed.Reg. 27736 (1978). Following adoption of these regulations, industry and environmental groups brought several actions challenging the second removal credit provision. A settlement agreement between EPA and the industry parties led EPA to propose amendments to these regulations. 44 Fed.Reg. 62260 (1979). A third regulation was promulgated on January 28, 1981. 46 Fed.Reg. 9404 (1981). The revised rules made it substantially easier for POTWs to grant removal credits and to give larger crédito for the same pollutant removals. Several industry parties nonetheless again brought suit, contending that the new rules did not go far enough. These actions were consolidated with the actions of environmental groups challenging the 1978 and 1981 regulations, all of which were heard by this Court in National Association of Metal Finishers v. EPA, 719 F.2d 624 (3d Cir.1983) [hereinafter NAMF] reversed in part sub nom. Chemical Manufacturers Ass’n v. NRDC, — U.S. -, 105 S.Ct. 1102, 84 L.Ed.2d 90 (1985). In NAMF, this court upheld the 1981 removal credit rule, rejecting industry arguments similar to, or identical with, those made by EPA here. At the same time that they were attacking the 1981 regulations in court, the industry petitioners also urged EPA to suspend these same regulations so that they could be reconsidered by the new Administration. See, e.g., letters from Chemical Manufacturers Ass’n. to EPA, Mar. 9, 1981 & Mar. 19, 1981, App. 145-51. In fact, EPA did defer the effective date of the 1981 regulations indefinitely, and subsequently proposed to develop yet another removal credits provision. 47 Fed.Reg. 4520 (1982). In response to a suit brought by NRDC, this Court ruled that EPA’s suspension of the pretreatment regulations without notice or opportunity for public comment violated the Administrative Procedure Act, 5 U.S.C. § 553(b)-(e), and that therefore both this initial suspension and a subsequent rulemaking proceeding, extending that suspension in part, were illegal. The EPA was therefore ordered to reinstate all of the amendments retroactively to March 10, 1981. Natural Resources Defense Council v. EPA, 683 F.2d 752, 768-69 (3d Cir.1982). EPA complied with this order on September 28, 1982. 47 Fed. Reg. 42688 (1982). However, on that same day, EPA proposed to amend the removal credit rule once again, on the grounds that it “has been criticized as being so burdensome and unwieldy as to discourage POTWs from applying for and obtaining authorization to grant removal credits.” 47 Fed.Reg. 42698 (1982). The fourth and ostensibly final removal credit rule, which is the one at issue here, was promulgated on August 3, 1984. 49 Fed. Reg. 31212 (1984) (codified at 40 C.F.R. § 403.7) (1985). Among other changes, this rule adopted a new, more lenient, method of measuring the consistency of toxics removal by POTWs. The overall effect of the new rule is that it enables POTWs to grant more and larger credits than under the 1981 rule, which itself constituted a relaxation of the 1978 rule. As a consequence, the requirements for industrial pretreatment have been very significantly reduced. Petitioner NRDC filed a timely petition for review of the 1984 (fourth) rule, claiming that whereas the 1981 rule was in compliance with the statute, the 1984 rule has relaxed the conditions for granting removal credits beyond the bounds permitted by the Clean Water Act. Petitioners Cerro Copper and Village of Sauget, in contrast, seek to have the 1984 rule set aside on the ground that, as applied to them, the rule is more severe than the statute allows. In addition, all petitioners present procedural arguments as to why the rule is invalid. II. Our standard of review of the Agency’s informal rulemaking in this case is governed by section 10(e)(2) of the Administrative Procedure Act, 5 U.S.C. § 706(2), and in particular by subsections (A), (C), and (D), which provide that the reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be — (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; ... (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [or] (D) without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (C), & (D). We must first determine whether the regulations are in conformity with the statute. In making this determination, the “view of the agency charged with administering the statute is entitled to considerable deference; and to sustain it, we need not find that it is the only permissible construction that EPA might have adopted but only that EPA’s understanding of this ‘very complex statute’ is a sufficiently rational one to preclude a court from substituting its judgment for that of EPA.” Chemical Manufacturers Association v. NRDC, — U.S. -, 105 S.Ct. 1102, 84 L.Ed.2d 90 (1985) (interpreting the Clean Water Act); see also Chevron v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984); NAMF, 719 F.2d at 637. On the other hand, this court may not abdicate its responsibility to interpret the statute in accordance with traditional principles of statutory construction. “[W]hile reviewing courts should uphold reasonable and defensible constructions of an agency’s enabling Act, ... they must not 'rubber-stamp ... administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.’” Bureau of Alcohol, Tobacco, and Firearms v. Federal Labor Relations Authority, 464 U.S. 89, 97, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983) (quoting NLRB v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965)); see also Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 120, 100 S.Ct. 2051, 2062, 64 L.Ed.2d 766 (1980); International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America v. Daniel, 439 U.S. 551, 566 & n. 20, 99 S.Ct. 790, 800 & n. 20, 58 L.Ed.2d 808 (1979); Hi-Craft Clothing Co. v. NLRB, 660 F.2d 910, 915 (3d Cir.1981). Statutory interpretation is one of the traditional functions of courts. Of course, “[i]f the intent of Congress is clear, that is the end of the matter; for the court as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron v. NRDC, 467 U.S. 837, 104 S.Ct. 2781-82, 81 L.Ed.2d 694 (1984). Furthermore, agency action in fulfillment of a statutory mandate is entitled to a presumption of regularity. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). But this presumption is not “equivalent [to] the presumption of constitutionality afforded legislation drafted by Congress.” Motor Vehicle Manufacturers Ass’n., 463 U.S. 29, at 43 n. 9, 103 S.Ct. 2856, at 2866 n. 9, (1983). “The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.” Chevron v. NRDC, 104 S.Ct. 2778, 2782 n. 9. We must, therefore, first determine whether EPA’s position is at least “within the outer limits of its authority to interpret” the statute. Teamsters v. Daniel, 439 U.S. at 566, 99 S.Ct. at 800. Second, we must examine the challenged aspects of the rulemaking procedure carefully to determine independently that the Agency has not acted unfairly or in disregard of the statutorily prescribed procedures for notice and comment rulemaking. See, e.g., NAMF, 719 F.2d at 637-38; American Iron & Steel Institute v. EPA, 568 F.2d 284 (3d Cir.1977). Third, we must review the substantive aspects of agency action under the arbitrary and capricious standard of 5 U.S.C. § 706(2)(A). This standard has recently been described by the Supreme Court as follows: The scope of review under the “arbitrary and capricious” standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a “rational connection between the facts found and the choice made.” Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 [83 S.Ct. 239, 246, 9 L.Ed.2d 207] (1962). In reviewing that explanation, we must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., supra [419 U.S. 281 at 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974)]. Normally, an agency rule would be arbitrary and capricious if 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. 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. SEC v. Chenery Corp., 332 U.S. 194, 196 [67 S.Ct. 1575, 1577, 91 L.Ed. 1995] (1947). We will, however, “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc. [419 U.S.] at 286 [95 S.Ct. at 442]. See also Camp v. Pitts, 411 U.S. 138, 142-43 (1973) (per curiam). Motor Vehicle Manufacturers Ass’n v. State Farm Mutual, 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). See also Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 284, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). We must defer to an agency’s expert judgment when it is acting within the scope of the statute, but we cannot allow expertise to shield an irrational decision-making process. “[U]nless we make the requirements for administrative action strict and demanding, expertise, the strength of modern government, can become a monster which rules with no practical limite on its discretion.’ ... We have frequently reiterated that an agency must cogently explain why it has exercised its discretion in a given manner ....” Motor Vehicle Manufacturers Ass’n, 463 U.S. at 48-49, 103 S.Ct. at 2869-70 (citations omitted). Where, as here, an agency has reversed its established interpretation of a statute, the degree of deference accorded to the agency may be somewhat lessened. As this court has said, “sharp changes of agency course constitute ‘danger signals’ to which a reviewing court must be alert.” NRDC v. EPA, 683 F.2d at 760 (citation omitted). See also Motor Vehicle Manufacturers Ass’n v. State Farm Mutual, 463 U.S. at 42, 103 S.Ct. at 2866 (“A ‘settled course of behavior embodies the agency’s informed judgment that, by pursuing that course, it will carry out the policies committed to it by Congress. There is, then, at least a presumption that those policies will be carried out best if the settled rule is adhered to.’ ” (citation omitted)); Sierra Club v. United States Army Corps of Engineers, 772 F.2d 1043, 1046 (2d Cir.1985) (“A change in something from yesterday to today creates doubt. When the anticipated explanation is not given, doubt turns to disbelief.”) An agency is, of course, free to change its position, but it must supply adequate data and a reasoned analysis to support the change. We will apply these standards of review first to the challenges raised by NRDC (parts III-VI) and then to the issues raised by Cerro Copper and the Village of Sauget (part VII). III. A. EPA’s 1984 removal credit rule provides that the combined amount of toxics removed by an indirect discharger and a POTW must equal the amount of toxics removed by the direct discharger. However, as we discuss in greater detail below, EPA’s 1984 rule fails to require the same consistency in the removal of toxics by POTWs and indirect dischargers as is required of direct dischargers. It therefore violates the statutory requirement of section 307(b)(1) of the Clean Water Act that the indirect discharge of pollutants through a POTW must “not violate that effluent limitation or standard which would be applicable to such toxic pollutant if it were discharged by [a direct discharger].” 33 U.S.C. § 1317(b)(1) (1977). The BAT (Best Available Technology) limitations and standards issued under the statute require direct dischargers to remove a certain amount of each toxic pollutant with a certain degree of consistency. BAT limitations and standards have at all times contained these two requirements. Thus, the statutory mandate that the indirect discharger and the POTW together must achieve the same standard of treatment as is required of the direct dis-charger requires that the standard of treatment be the same both in total amount of toxics removed and in the consistency of such removal. The BAT limits applicable to direct dis-chargers are based on empirical studies of the amount and consistency of removal that can be achieved by a well-designed and operated plant. These limits require consistency of removal in two important respects. First, they are set so that a dis-charger can be in compliance virtually all the time. See, e.g., General Pretreatment Regulations, 43 Fed.Reg. 27743 (1978). “Guidelines are generally calculated with a 99% confidence level. Therefore, if a dis-charger exceeds the effluent limitations established by the guideline regulation, there is a 99% certainty that it was caused by discharger error rather than statistical variation.” National Pollutant Discharge Elimination System Permit Regulations, 49 Fed.Reg. 38019 (1984). Second, the limits fix precise daily maxima as well as monthly averages, neither of which may be exceeded by the direct discharger. The indirect discharger and the POTW must achieve an equivalent consistency in these two respects. When Congress enacted the 1977 amendments, many of the BAT effluent limitations applicable to direct dischargers had already been promulgated and others were near promulgation. All of them were set so that they could be met 99% of the time, and all of them contained monthly averages and daily maxima. See, e.g., 40 C.F.R. §§ 129.102-129.104 (1984) (effluent standards for endrin, toxaphene, and benzidine); 40 C.F.R. pts. 405-469 (1984) (effluent limitations guidelines for various industrial categories). Congress, in its 1977 amendment to section 307(b)(1) of the Clean Water Act, used the term “effluent limitation or standard,” thereby incorporating the consistency requirement of that term into the removal credit provision and making the requirement applicable to POTWs and indirect dischargers. As previously noted, the Clean Water Act of 1977 not only required indirect dischargers to meet standards equivalent to the BAT standards required of direct dischargers, but also provided for removal credits to avoid redundant treatment of wastes by the POTW and the indirect dis-charger. It is evident to us, from our reading of the statute, that such removal credits should be made available only when both the consistency and amount of treatment are indeed equivalent to BAT standards. Under the guise of preventing redundant treatment, EPA has defined the term “consistent removal rate” to encompass POTW pollutant removal that is not consistent at all. Yet in promulgating the first full removal credit rule, in 1978, EPA stated: Since direct dischargers are required to comply with their effluent limitations at all times, the EPA believes that the pollutant removal claimed by a POTW should be that removal which occurs virtually all of the time. As used in the regulation (§ 403.7), “consistent” removal is the removal capability that a POTW achieves in 95% of the representative samples' taken. 43 Fed.Reg. 27743 (1978). By permitting inconsistent removal, EPA also permits the granting of credits for treatment that is not redundant but mandatory under the statute. The 1978 rule required the POTW to conduct 12 influent/effluent samplings each year. The consistent removal rate was defined as the lowest of the 12 removal rates in the sample, under the assumption that the POTW would be removing at least that amount 95% of the time. Because POTW removal is more variable than that of direct dischargers, and because EPA believed that it would be too burdensome for POTWs to determine whether they are removing a toxic with 99% consistency, EPA adopted the 95% consistency figure for POTWs as substantially equivalent to the 99% figure applicable to direct dischargers. In response to complaints from indirect dischargers and POTWs that the 1978 removal credit provision was “unworkable” and that most POTWs would not apply for credits, this definition of consistent removal was amended in the 1981 rule to provide that the level of removal on which the credit would be based would be that achieved by a POTW 75% of the time. See 46 Fed.Reg. 9424 (1981). Seventy-five percent consistency was measured by averaging the lowest six of 12 POTW removal samplings. Id. As noted above, the regulated dischargers still claimed that the removal credit rule was “unworkable,” and pressed successfully for a further relaxation of the measurement of consistent removal. The 1984 rule, in fact, provides that “consistent removal is calculated ... as the difference between the average influent and effluent concentrations in all of the sample data.” 49 Fed.Reg. 31215 (1984). Instead of basing its measure of consistent removal on an average of the lowest six of the twelve samplings, as the 1981 rule required, the 1984 rule bases its measure on the average amount removed in all twelve samplings. According to this formulation, the amount of removal achieved by a POTW on average, that is, 50% of the time, will determine the amount of credit an indirect discharger will receive. In short, EPA first changed the definition of “consistent” removal from its original meaning, i.e. removal that occurs 95% of the time, to a second meaning, i.e. removal that occurs 75% of the time. EPA, then, in its 1984 rule, revised its definition of consistency to refer to removal that occurs only 50% of the time. We find it difficult to fathom how a level of removal that is met one half of the time and exceeded one half of the time, and that contains no limit on the permissible amount of variability, can be termed “consistent.” EPA provides two justifications for the change in the definition of “consistent” removal from 75% consistency to 50% consistency. These justifications are the same ones advanced by EPA in 1981 for its shift from 95% to 75% consistency. The first justification is that the approach used in the 1978 rule, which based the measure of consistent removal on the lowest of 12 sample removals, is “statistically unsound.” Brief for Respondent at 32 (quoting 1981 Final Rule, 46 Fed.Reg. 9424 (1981)). In 1981, in justifying its shift from 95% consistency to 75% consistency, EPA outlined its thinking on this issue with commendable candor. EPA pointed out that using the lowest of the 12 samplings to define consistent removal might easily give rise to error, because “[t]he data at the extremes of this 12 point distribution have the greatest chance of being in error. Thus, if the lowest level of Removal identified were unrepresentatively low, the POTW would be held to an unreasonably small level of Removal.” 1981 Final Rule, 46 Fed.Reg. 9424. It would be better, EPA said, to estimate the amount removed 75% of the time rather than trying to estimate the amount removed 95% of the time, because the amount removed with 75% consistency could be measured reliably without increasing the number of samplings. EPA admitted, in 1981, that the choice between 95% consistency and 75% consistency was not a purely technical choice of the one statistically correct method. It stated frankly that it could estimate the amount of removal required to attain 95% consistency, and thus cure the “statistical unsoundness,” by increasing the number of annual samplings required of POTWs. The choice of the 75% level was “admittedly a compromise,” id., between two policy considerations. Because POTWs generally have little incentive to apply for authorization to grant removal credits, EPA was concerned that POTWs would not apply for such authorization if the sampling and reporting requirements imposed upon them were too onerous. On the other hand, EPA was concerned that the rule “ensure that a reasonably consistent level of removal is maintained.” 46 Fed.Reg. 9424 (1981). Even if EPA’s reasoning might have justified a change from a 95% to a 75% consistency requirement, that same reasoning cannot justify a change from a 75% to a 50% consistency requirement if such a change violates the command of the statute. That command, as we have repeatedly observed, requires that the amount and variability of toxic discharges through a POTW not exceed those that would be discharged by a direct discharger operating under BAT-level controls. The relevant question is not one of finding the one correct method of measuring consistent removal, nor of determining the easiest method of measuring consistent removal, but rather whether a removal credit based on the amount a POTW removes 50% of the time conforms with the requirement of the Act. We are convinced that it does not. In its brief, EPA makes much of the fact that using all twelve samplings gives “ ‘a more reliable estimate of the actual removal achieved than [did] the method employed in the 1981 amendments’.” Brief for EPA at 34 (quoting Proposed Rule, 47 Fed.Reg. 42700 (1982)) (emphasis added by EPA). EPA’s definition may indeed provide a more reliable estimate of the actual removal on average. But both the statute and EPA’s own previous regulations require that the indirect discharger, in combination with the POTW, meet the same standard as the direct discharger must meet. This means not only that the total amount removed by the POTW and the indirect discharger together must be at least equal to that removed by a direct discharger operating under BAT controls, but also that the POTW and the indirect discharger must consistently meet the monthly and daily limits that direct dischargers meet. EPA’s second justification for its new definition of consistency is that it gives full effect to Congress’ desire to avoid redundant treatment while still complying with the mandate of section 307(b)(1) that the ultimate discharge from the POTW must not be greater than that which would be allowed from a direct discharger. In its statement of basis and purpose accompanying the 1981 rule, EPA argued that although “[i]n most cases the proposed calculation will indeed result in higher removal allowances and consequently less stringent ... pretreatment limits,” this would not lead to the discharge of “unacceptable amounts of pollutants ... to navigable waters.” 46 Fed.Reg. 9424. EPA explained why, in its view, the change in the definition of consistent removal would not lead to POTW discharges in excess of BAT limits: Industrial users are subject to “daily maximum” and “long term average” pretreatment limits. If the Industrial User is to meet the long term average, the User can only infrequently approach the daily maximum number in its daily discharge. For the joint treatment provided by the Industrial User and POTW to be less effective than that required of a direct discharger, a discharge by the User at the daily maximum level would have to coincide with abnormally lower removal at the POTW. The statistical complexities of the situation do not permit a numerical estimate of the number of times this might occur, but EPA expects it to be small. One comment received by EPA on this subject stated that a computer simulation of the problem showed that violations of the daily maximum would occur less than 2% of the time. This simulation made certain assumptions concerning the statistical distributions which EPA is unable to verify, and EPA did not rely on this result in reaching a decision on the final method of calculation of Consistent Removal. 1981 Final Rule, 46 Fed.Reg. 9424 (emphasis added). The same explanation is reiterated in EPA’s Rebuttal to NRDC’s Reply Brief. In essence, EPA’s argument rests on the claims that the POTW will rarely perform below its average, that the indirect discharger will virtually never exceed its limit, and that the frequency with which these two events will occur simultaneously is even lower. EPA is correct in asserting that the indirect discharger will rarely exceed its limit. That limit is set so that it can be complied with virtually all the time, and this remains true even when the limit is raised to credit the indirect discharger for the POTW’s additional removal of pollutants. But there is no evidence whatsoever to support the claim that the POTW will rarely perform below its average. In fact, this claim is blatantly contradicted by a wealth of evidence in the record, including repeated statements by EPA itself that POTW removal is extremely variable. In 1977, EPA cautioned that “extreme variability in pollutant removals experienced by POTWs” was among the factors to be taken into account in defining an approach to the granting of credits. Proposed Pretreatment Regulations, 42 Fed.Reg. 6485 (1977). In promulgating the 1981 rule, EPA noted that “industrial pretreatment provides much superior removal of pollutants than does treatment at the POTW.” 1981 Final Rule, 46 Fed.Reg. 9406. This is true, EPA said, first, because POTWs are not designed to remove toxic pollutants, and second, because “the dilution [by sewage, other industrial wastes, and, on some days, by rainwater] that occurs at the POTW causes less efficient removal ... than would be achieved by the Industrial User with its more concentrated waste stream____ Partially because removal of toxic pollutants by the POTW is incidental to its normal operations, it is also variable____ Removal of toxic pollutants by the POTW will ... be more variable than removal by treatment technologies designed to remove such toxics.” Id. at 9406, 9407. Most recently, in promulgating the 1984 rule, EPA once again emphasized the lack of consistency in POTW removal. 1984 Final Rule, 49 Fed.Reg. 31216. And, in its brief to this court, EPA declares that “the variability of daily removal estimates [for POTWs] may be quite large.” Brief for EPA at 35. The data from EPA’s 1978 study of 40-POTWs provide ample confirmation of the variability of POTW removal. These data clearly reveal that a POTW may remove virtually all of a particular pollutant on day one while removing little or none of that pollutant on day two. See, e.g., Determining National Removal Credits for Selected Pollutants for Publicly Owned Treatment Works, EPA 440/2 82-008, at B25-B28 (1982) (showing removal of silver on 6 different days for 16 POTWs). In contrast, most BAT limits provide that the discharge for any one day cannot be more than double the average limit for the month as a whole. See 40 C.F.R. pts. 405-469 (1984). The amount of variability (or inconsistency) in POTW removal is particularly important where the removal credit is great. In this situation, most of the removal required in reaching BAT-equivalent levels of treatment will be performed by the POTW, not by the indirect discharger. Thus, the consistency of performance that the indirect discharger achieves in removing the small share of the toxics that it must remove will be relatively unimportant in comparison to the large amount of variability in the POTW’s performance in removing the larger share for which it is responsible. See NRDC’s Reply to EPA’s Rebuttal. It is not at all unusual for removal credits to be in the 80 to 90 percent range. Especially using the method of calculating consistent removal permitted by the 1984 rule, such large credits are very common for many toxics. See, e.g., applications for removal credit authority from Chicago and Los Angeles County, App. 340-41, 344, 346-48. In such cases, the POTW by itself is responsible for removing between 80% and 90% of the pollutant. When this is so, the variability in the removal performance of the POTW will be almost fully reflected in variability in the final discharge into navigable waters. As noted above, EPA admitted in 1981 that it had no reliable evidence to support its contention that the joint treatment by the indirect discharger and the POTW operating under a 75% consistency requirement would only rarely exceed the BAT limits that direct dischargers must meet. Yet in 1984, again without presenting any evidence, and in the face of a substantial body of evidence to the contrary collected by EPA itself, including EPA’s own assertions, EPA claims that a measure of average removal (or 50% consistency) will not lead to violations of the variability limits imposed on BAT dischargers. In fact, as we have seen, the evidence on POTW variability in the record shows that the measure of consistent removal under the 1984 rule will frequently allow discharges very substantially above the daily and monthly maxima that BAT dischargers must not exceed. Under EPA’s rule, the parity in removals between direct and indirect dischargers that is mandated by the statute is guaranteed, if at all, only over the space of a year. If there could be any doubt regarding the fact that EPA’s 1984 rule is in derogation of the statute’s mandate, it is dispelled by a consideration of the legislative history of the 1977 Act. In enacting the removal credit provision in 1977, Congress had two purposes. Congress’ first, and overriding, concern was to ensure that the combined treatment by the indirect dis-charger and the POTW is equal to that by the direct discharger operating under BAT limits. Secondly, as a subordinate goal, Congress sought to avoid redundant treatment by the indirect discharger and the POTW insofar as this is possible without compromising the primary goal of parity. The first major water pollution control legislation, the Clean Water Act of 1972, stated in its first section, entitled “Declaration of Goals and Policy,” that “it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited.” 33 U.S.C. § 1251(a)(3). As we have noted above, Congress’s concern with the problem of toxic pollutants led it to strengthen the provisions for dealing with toxics in the 1977 Act. The Conference Report was explicit in stating that “[t]he combination of pretreatment and treatment by the municipal treatment works shall achieve at least that level of treatment which would be required if the industrial source were making a direct discharge.” Leg.Hist. 271 (emphasis added). This point was reiterated by Representative Roberts, the House manager, in presenting the conference bill to the House. Leg.Hist. 343. The Senate Report suggests that Congress wished removal credits to be granted sparingly. The Report notes that with the exception of a few POTWs specifically designed to treat industrial wastes, POTW treatment of wastes is too variable to allow the assumption of a specific level of removal. Comm, on Environment and Public Works, Clean Water Act of 1977, S.Rep. No. 370, 95th cong., 1st Sess. 58 (Leg.Hist. 691). The Report also points out that the toxics removed through secondary treatment by a POTW would simply be transferred to the sewage sludge, creating further disposal problems. “In the. long run,” the Report notes, “the only real solution to the problem of safe disposal of toxic or hazardous industrial pollutants is in their reuse and recycling by industry, not the transfer of such materials from [an] industrial waste stream into municipal waste streams____” Id. This can only be accomplished by pretreatment of the pollutants by the industrial discharger. Congress’s reasoning suggests that it did not intend the removal credit provision to be interpreted too generously, and it certainly did not intend that provision to be interpreted so as to nullify the protections it was then enacting against toxic pollution. Finally, the EPA itself has stated that the statute requires that POTW removal be highly consistent before a credit could be granted: In order to justify allowing a revision to a categorical pretreatment standard the pollutant removal claimed by a POTW must occur virtually all the time. The EPA believes that a stringent interpretation of “removal” is warranted in light of the policy of the Act to prohibit the discharge of toxic pollutants in toxic amounts (section 101(a)(3)), and the application of section 307(b)(1) to section 307(a)(1) toxic pollutants. 1978 Final Rule, 43 Fed.Reg. 27765 (1978). Nothing in the language of the statute or in the legislative history suggests that Congress intended to permit, let alone require, that removal credits be granted when these credits would result in discharges that would violate the daily maximum and monthly average limits under which direct dischargers must operate. We do not believe that Congress’ mandate for the removal of toxic wastes should be subject to exceptions dictated by the convenience of the dischargers. The reason for requiring polluters to meet daily and monthly limits as well as long-term limits is obvious: a single concentrated discharge of a toxic pollutant can do irreparable damage to the ecology of a body of water, killing fish and other life forms. Such excessive toxic discharges cannot be compensated for by a reduced discharge of water during subsequent months. Under EPA’s current definition of consistent removal, discharges could be above the limit for months at a stretch, so long as these above-average months were offset by below-average discharges in other months. We therefore hold that EPA’s definition of consistent POTW removal, i.e. removal that is achieved only 50% of the time, violates section 307(b)(1) of the Clean Water Act, 33 U.S.C. 1317(b)(1). B. Even had we not held that EPA’s 1984 definition of consistent removal violated section 307(b)(1) of the Clean Water Act, we would be obliged to hold that EPA’s enactment of the challenged regulation was arbitrary and capricious. According the utmost deference to the Agency, we still cannot find that EPA has given reasons for its new rule that “could lead a reasonable person to make the judgment that the Agency has made.” Weyerhaeuser v. Costie, 590 F.2d 1011, 1026-27 (D.C.Cir.1978). In 1981, when EPA reduced the consistency requirement from 95% to 75%, it acknowledged that this reduction might lead to violations of the required parity between indirect dischargers and POTWs on the one hand and direct dischargers on the other. Yet in 1984, when EPA further reduced the consistency requirement from 75% to 50%, it did not even address the key question of whether its new measure of “consistent” removal will assure such parity. Instead, in a one-sentence explanation of the change, EPA conclusorily stated that its new measure of consistency “provides a more accurate and equitable estimate of the actual removal achieved than the method employed in the 1981 regulation.” 1984 Final Rule, 49 Fed.Reg. 31215 (1984). This statement is misleading in that it focuses solely on the amount of removal while ignoring the consistency requirement of the statute. The available evidence, to which we have previously referred, indicates that the parity required by the statute will rarely be achieved under EPA’s 1984 rule. The fact that the Agency has “entirely failed to consider an important aspect of the problem [and has] offered an explanation for its decision that runs counter to the evidence before the agency” renders arbitrary and capricious its decision to change the measure of consistent removal to what is in reality a measure of average removal. Motor Vehicle Manufacturers Ass’n. v. State Farm Mutual, 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). Without regard to Congress’s overriding intent that pollutants be eliminated from the nation’s waters, without evidentiary support in the record, and without adequate explanation, EPA has de facto deleted the consistency requirement from the removal credit rule. For this reason, without more, we are satisfied that EPA’s regulation is arbitrary and capricious under the test set out by the Supreme Court in Motor Vehicle Manufacturers Ass’n. v. State Farm Mutual, 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). IV. A. Combined sewers are conduits that transport domestic wastewater, industrial waste-water, and, during periods of wet weather, storm water runoff. Combined sewer systems were built in major American cities before the turn of the century, at a time when the need for separate treatment of wastewater was not yet apparent. POTWs in these systems generally do not have the capacity to deal with the great increase in flow that occurs during rainfall or snowmelt. They therefore have overflow points and treatment plant bypasses to handle the excess flow during such periods. Events of overflow are referred to as “combined sewer overflows” (CSOs). The 1981 removal credit rule contained a provision that adjusted the amount of credit that an indirect discharger could receive so as to take CSOs into account. We conclude that EPA’s deletion of this provision from the 1984 rule, without any plausible explanation, violates section 307(b)(1), and in any event is arbitrary and capricious. The 1978 removal credit rule provided that removal credits could be granted by a POTW that experienced overflow at least once a year only if that POTW was implementing an approved plan to treat and control such overflows. 1978 Final Rule, 43 Fed.Reg. 27765. In response to complaints from indirect dischargers, this provision was modified in the 1981 rule to allow an alternative way for a POTW with overflow problems to grant credits. The POTW could calculate the number of hours per year during which overflow occurs. The removal credit would then be reduced by a percentage equal to the percentage of overflow time during the year. If, for example, overflow occurred during 15% of the year, the removal credit would be reduced by 15%. In promulgating the 1981 rule, EPA explained that if the regulations are to meet the statutory requirement of parity between treatment by the direct discharger and treatment by the indirect discharger plus POTW. it is obvious that the POTW should be credited only with that removal which it actually achieves. Thus, EPA has imposed, through the provisions of [40 C.F.R.] § 403.7, several requirements which ensure that industry standards are relaxed only to the extent that the POTW actually removes the pollutants in question. ****** [Therefore,] the provisions of § 403.7(b) provide that a removal allowance must reflect those periods where industrial pollutant-bearing wastes overflow the POTW and there is, consequently, no actual removal of these pollutants by the POTW. ****** Although some commenters have indicated that the foregoing requirements place unduly burdensome restrictions on the POTW wishing to request a removal allowance, the Agency believes that it has properly interpreted the statute to provide that the POTW will be credited only with that level of removal which is actually and consistently achieved. Support for this interpretation is found in the conference report accompanying the Clean Water Act and in the House debate on the Conference Report [as well as in the Senate debate on the Conference Report]. 1981 Final Rule, 46 Fed.Reg. 9423. Notwithstanding its own interpretation of the statutory requirement, EPA resorted to what it termed a “justifiable compromise” that went beyond giving credit for toxic waste which is actually and consistently removed. 46 Fed.Reg. 9426. In fact, adjusting the credit granted to the indirect discharger by the percentage of time that overflows occur does not take into account the fact that CSOs cause sudden increases in pollutant discharges into navigable waters. “[An] important characteristic of CSO ... is the intermittent nature of the discharge____ The impact of a large combined sewer overflow event on any viable aquatic biota element in the receiving water can be extremely detrimental.” Report to Congress on Control of Combined Sew er Overflow, supra, at ES-4. A strict interpretation of the statute would, therefore, need to take into account the POTW’s performance during an overflow. However, here, as with the definition of consistent removal, the Agency was concerned not to adopt an approach that would be “unduly burdensome for POTWs to implement,” or that would reduce too greatly the number of POTWs able to grant removal credits to their industrial dischargers. 46 Fed.Reg. 9426. Although the 1981 CSO provision was a relaxation of the 1978 rule, and an admitted compromise, it was challenged by industry petitioners in this court. National Association of Metal Finishers v. EPA, 719 F.2d 624 (3d Cir.1983) (NAMF). The petitioners argued that “POTWs will be unable to make verifiable engineering estimates of the hours of overflow, and will thus be unable to grant removal credits.” NAMF, 719 F.2d at 649. This court, upholding the CSO provision, responded that “section 403.7(b) simply implements the statutory requirement that removal credits be granted only for pollutants actually removed by the POTW. Moreover a POTW unable to estimate the time, let alone the amount, of untreated wastewater overflow may not be able to accurately predict the proportion of pollutants which it will remove.” Id. In 1982, EPA proposed a further relaxation: it would entirely eliminate the overflow compensation requirement from the calculation of removal credits, on the ground that “the overflow adjustment makes a negligible difference in the final removal credit.” 1982 Proposed Rule, 47 Fed.Reg. 42701. It based its conclusion on a 1978 study of 15 POTWs. See Report to Congress on Control of Combined Sewer Overflow, supra, ch. 6 passim. “Relying on frequency modeling of the rainfall characteristics of [10 of the 15] sites, the report found that combined sewers will overflow an average of 7.3% of the time.” 1982 Proposed Rule, 47 Fed.Reg. 42701. A 7.3% adjustment in the removal credit, EPA stated, will led to a negligible adjustment in the discharge limit the indirect discharger is required to meet. The 1984 rule did in fact eliminate the CSO provision. B. The deletion of the CSO provision violates section 307(b)(1) of the Clean Water in two respects. First, EPA may not base removal credits on a purported average figure for the frequency of CSOs. To do so ignores the great variability among POTWs in the number and duration of CSO events and in the amount of bypass that occurs during such events. For many POTWs, overflow would require an adjustment of substantially more than 7.3%. Second the statute does not permit EPA to raise pollutant discharge limits for indirect dischargers by 7.3%, or by any amount that is not de minimis, over those that are required of direct dischargers simply because it feels that an increase in pollutant discharge is not very large. This violates the requirement that treatment by indirect dischargers plus POTWs must equal that by the direct discharger, because it permits the indirect discharger and the POTW to discharge a greater total amount of pollutants, and because it permits POTWs and indirect dischargers to discharge waste that is largely untreated, in complete disregard of any requirement of consistency. The type of average measure relied upon by EPA in deciding to delete the CSO provision is similar to the national removal rate measure proposed (in 1982) and subsequently rejected (in 1984) by the Agency as a method of determining how much credit to grant to indirect dischargers. According to EPA’s 1982 proposal, a national removal rate for each pollutant was to have been set at the level which was met by roughly 75% of 40 POTWs studied by EPA. 1982 Proposed Rules, 47 Fed.Reg. 42699-700. In rejecting the national removal credit proposal as proposed in 1982, EPA stated: The Agency has concluded, upon reconsideration, that Congress intended that a removal credit be granted for a particular pollutant only to the extent that a particular POTW can demonstrate that it removes the pollutant. The language of the statute, buttressed by the legislative history, indicates that removal credits are to be based upon case-by-case removal determinations, rather than upon a nationally determined rate. 1984 Final Rule, 49 Fed.Reg. 31212-13. EPA correctly relied on the language of section 307(b)(1) of the Clean Water Act, on the legislative history of the 1977 Act, and on this court’s holding in NAMF, 719 F.2d 624, to conclude that the enormous variability of removal performance among POTWs made the use of an average removal figure unlawful. For the very same reasons, EPA’s reliance on an average rate of “nonremoval,” i.e. of overflow, cannot support its deletion of the CSO adjustment in the 1984 rule. If EPA concedes, as it does, that removal rates for individual POTWs cannot be determined on the basis of a national sample, it is difficult to see how the duration and importance of CSO events at individual POTWs can be determined on the basis of two studies of a small number of POTWs, (one of ten POTWs, the other of eight POTWs) neither of which can be deemed representative of the entire universe of 1300 municipalities. By using an average 7.3% figure for overflows, EPA fails to take into account that in some cities the percentage of time in which overflows occur is substantially greater. In Philadelphia, for example, overflows occur at nearly double the average rate. Chicago’s 1984 application for authority to grant removal credits, included in the record in this case, states that in two typical pumping stations, overflows occurred 10.9% of the time. See Request of Authority to Revise Categorical Pretreatment Standards 25 (Metropolitan Sanitary District of Greater Chicago, 1984) (App. 343). In addition to ignoring variability in the frequency and duration of CSOs, EPA also bases its decision on the asserted “insignificance” of a 7.3% adjustment in the discharge limit applicable to indirect dischargers. It seems obvious that a 7.3% difference in the total amount of pollutant discharged into navigable waters over the long term is not de minimis. As NRDC points out, EPA has in the past deemed relatively small changes sufficient to warrant promulgating new rules. For example, the Agency promulgated new pretreatment standards for electroplaters for nickel, even though the new limits were only 3% to 8% more stringent than the old ones. Compare 46 Fed.Reg. 9472 (1981) with 48 Fed.Reg. 32487 (1983). Likewise, in its iron and steel standards, EPA gave merchant coke plants different daily and monthly direct discharge effluent limits only 7% less stringent than those for other cokemaking plants. 47 Fed.Reg. 23287. Adopting EPA’s data and analysis, NRDC concludes that as a result of CSOs, indirect dischargers dispose of 560,000 additional pounds of toxics a year directly into the nation’s waters. Reply Brief for NRDC at 14-15. This figure exceeds the total volume of toxics currently discharged into POTWs by eight industrial categories which EPA has nevertheless seen fit to regulate. See Assessment of the Impacts of Industrial Discharges on Publicly Owned Treatment Works Table 1-3 (1981) (Report prepared for EPA by JRB Associates). We need not, however, rely on this illustrative calculation to understand that combined sewer overflow is a major environmental hazard, and has been viewed as such not only by EPA, but by Congress as well. See section 416(c) of the Clean Water Act, 33 U.S.C. § 1375(c) (requiring the Administrator of EPA to submit report on CSO to Congress); see also comments of House manager Rep. Roberts, Leg. Hist. 357 (“Combined sewer overflow is a serious pollution problem which must be addressed in order to meet the enforceable requirements of the Act.”) We therefore hold that a removal credit regulation that permits indirect dischargers and their POTWs to ignore CSOs, and thus to exceed the limits applicable to direct dischargers by 7.3% on average, and by at least 13% in some cities, is in violation of section 307(b)(1) of the Clean Water Act, 33 U.S.C. § 1317(b)(1). C. EPA has failed to provide any plausible reason for deleting the CSO requirement. Nor has it provided any explanation for, or evidence supporting, a 7.3% average increase in pollutant discharges, and a discharge increase of 13% or more in certain cities. Nevertheless, it has proceeded to eliminate the CSO provision. Neither the 1978 report on which EPA relied in its initial proposal nor the 1984 report which EPA uses to buttress this proposal even addresses the question of environmental effects. Furthermore, at the time when EPA proposed to delete the CSO provision, it cited no data whatsoever in support of its decision beyond what had been available to it when it promulgated the 1981 rule. Even if it were admitted, which it cannot be, that deletion of the CSO adjustment would have little significant detrimental impact on the environment, the Agency has provided no explanation of why the adjustment should be deleted except to say that POTWs have difficulty measuring their CSOs. This might at most argue for the use of an average figure, but it certainly cannot provide support for deleting the adjustment entirely. Thus, in addition to violating section 307(b)(1), the Agency’s deletion of the CSO adjustment without any rational justification, and without any discussion of the environmental effects that will result, must be deemed arbitrary and capricious. V. The 1984 rule changed the test for determining when a removal credit has to be modified or withdrawn. Instead of acting whenever the POTW no longer fulfills the conditions justifying a credit, EPA will, under its 1984 rule, withdraw a credit before the expiration of the POTW’s five-year permit only if the POTW’s removal rate drops “consistently and substantially” below the rate claimed in its permit application. 1984 Final Rule, 49 Fed.Reg. 31224. We agree with NRDC that the new test violates the Clean Water Act. EPA’s 1978 version of the rule had simply stated that “EPA or the NPDES State can withdraw [a POTW’s] authorization [to grant credits] ... upon 60 days notice of continued violation.” 1978 Final Rule, 43 Fed.Reg. 27766. Later, in the 1981 version of the rule, EPA expanded upon this statement in section 403.7(f)(5). This section provided that, following notice to the POTW of a violation, If appropriate corrective action is not taken within a reasonable time, not to exceed 60 days unless the POTW or the affected Industrial Users demonstrate that a longer time period is reasonably necessary to undertake the appropriate corrective action, the Approval Authority shall either withdraw such discharge limits or require modifications in the revised discharge limits [i.e. in the removal credit]. 1981 Final Rule, 46 Fed.Reg. 9447. Under the 1981 rule, action by the Approval Authority or by EPA was triggered by a determination “that such discharge limit revisions [i.e., removal credits] are causing or significantly contributing to a violation of any conditions or limits contained in the POTW’s NPDES Permit.” Id. For the definition of when a removal credit “significantly contributes to a violation,” the rule referred to subsections 403.3(i) and (n) of the General Pretreatment Regulations, 40 C.F.R. 403.3(i) and (n) (1982), which define when an indirect discharger “significantly contributes” to a POTW permit violation. 1981 Final Rule, 46 Fed.Reg. 9439-40. Subsections 403.3(i) and (n) define any discharge in excess of permitted amounts as significant. In NAMF, 719 F.2d 624, this provision of the 1981 removal credit rule was attacked by industry petitioners as unworkable: “Joint petitioners say that due to section 403.7(f)(5) they will be unable to rely on their removal-revised discharge limits and will be forced to install just as much control technology as if there were no removal [by the POTW] at all.” NAMF, 719 F.2d at 649. This court responded: “We agree with EPA ... that such withdrawn or modified discharge limits, though unfortunate, are merely the recognition of the POTW’s failure to remove the pollutant.” Id. In spite of this court’s approval of the 1981 provision, in 1982 EPA proposed to amend section 403.7(f) to give the POTW six months to return to compliance after the initial violation. The proposal provided further that, “The Approval Authority can ... extend the time for compliance for up to one year if the POTW demonstrates good faith efforts to return to compliance.” 47 Fed.Reg. 42703. NRDC, in its comments on the proposed rule, challenged the legality of this extended tolerance of POTW violations. In promulgating the 1984 final rule, the Agency responded that it “agrees that the proposed procedure.... provided too much latitude to a POTW which is experiencing problems,” and it deleted the proposed change. 1984 Final Rule, 49 Fed.Reg. 31220. However, EPA found another route to the same goal: it amended the test that determined when action by the Approval Authority or by EPA will be triggered. Under the 1984 rule, “the removal credits will generally remain set for the [five-year] term [of] the POTW’s NPDES permit.” 49 Fed.Reg. 31216. The removal credits can be modified or withdrawn during the permit term only if “the POTW’s consistent removal rate is consistently and substantially lower than the removal credit specified in the POTW’s NPDES permit.” 1984 Final Rule, 49 Fed.Reg. 31224. With this change, EPA has relaxed both the consistency and the amount of removal of pollutants required of POTWs and indirect dischargers. Under this test, even grossly inconsistent removal will not be sufficient cause for withdrawal of a credit; and even removal substantially below the required amount will not be sufficient cause for withdrawal of a credit. Only when both these violations occur can a credit be withdrawn before the expiration of a POTW’s permit. After the credit is withdrawn, the indirect discharger may, in certain cases, have up to three more years to install the required treatment systems. See 40 C.F.R. §§ 403.7(f)(4)(iii) & 403.6(b) (1985). Thus, a violation of the BAT-equivalent limits required by section 307(b)(1) of the Clean Water Act, 33 U.S.C. § 1317(b)(1), may continue for up to eight years before the Agency’s rules permit it to act against the violators. EPA conceded that its proposal, made in 1982, to delay for up to 12 months the initiation of credit withdrawal procedures against a POTW that is in violation of its discharge limits would have “provided too much latitude to a POTW which is experiencing problems,” even as applied to a POTW that was only slightly in violation of these limits. 49 Fed.Reg. 31220. Yet after deleting the change proposed in 1982, EPA in 1984 substituted a provision that allows a potential of up to eight years of violative discharges. We note once again that the BAT limits are set so that, applying available technology, they can be met with 99% consistency. Removal credits must also be set so that they can be met consistently. The Clean Water Act forbids POTWs and indirect dis-chargers to exceed BAT-equivalent limits for substantial periods of time. Yet EPA’s 1984 rule, in permitting precisely this, is in contravention of section 307(b)(1) of the Clean Water Act. VI. A. Virtually all of the toxics that do not pass untreated through the POTW become concentrated in the sludge. The “removal” of non-biodegradable toxics, such as metals, from the wastes that flow into the POTW transfers these toxics from the POTW’s liquid wastestream to the POTW’s solid waste, i.e. to the sludge. See 1981 Final Rule, 46 Fed.Reg. 9408. For example, EPA has found that 28 of the 129 priority pollutants listed in the toxics consent decree, NRDC v. Train, 8 Env’t Rep. Cas. (BNA) 2120, although not detected in POTW influents, had become concentrated in sufficient amounts to be detectable in POTW sludge. The Fate of Priority Pollutants in Publicly Owned Treatment Works 70-71 (EPA doc. no. 440/1-82/303) (1982). Contamination of POTW sludge with toxics creates numerous problems. It makes disposal by municipalities expensive and difficult. It may prevent productive uses of sludge, for example as fertilizer or soil conditioner, or it may introduce toxics into the food chain, where they become further concentrated. Toxics from landfills may leach into groundwater and contaminate drinking supplies. If incinerated, toxics can poison the atmosphere, harming POTW workers and surrounding communities. As EPA has noted, “It is therefore desirable to isolate these toxic pollutants in small, but concentrated, industrial sludges, rather than sending them on to the larger POTW sludge.” 1981 Final Rule, 46 Fed.Reg. 9410. This can only be done through pretreatment by the discharger. Pretreatment has other advantages as well. Toxics can be treated more efficiently when they are more concentrated and when the treatment can be designed for the specific pollutants involved. In some cases, the industry can apply technologies to recover and recycle valuable metals and organic toxics which could not be applied at the POTW. With these considerations in mind, Congress in 1977 added subsection 405(d) to the Clean Water Act. This subsection provides as follows: The Administrator, after consultation with appropriate Federal and State agencies and other interested persons, shall develop and publish, within one year after December 27, 1977, and from time to time thereafter, regulations providing guidelines for disposal of sludge and the utilization of sludge for various purposes. Such regulations shall — (1) identify uses for sludge, including disposal; (2) specify factors to be taken into account in determining the measures and practices applicable to each such use or disposal (including publication of information on costs); (3) identify concentrations of pollutants which interfere with such use or disposal. 33 U.S.C. § 1345(d). At the same time, Congress amended section 307(b)(1) of the Act to condition the granting of removal credits upon POTW compliance with subsection 405(d). Such credits may be authorized only if they do not “prevent sludge use or disposal by such works in accordance with section 405 of this Act.” 33 U.S.C. § 1317(b)(1). The 1984 removal credit rule purports to satisfy these statutory requirements by providing that credits will not be granted unless “[t]he granting of [such] removal credits will not cause the POTW to violate the local, State and Federal Sludge Requirements which apply to the sludge management method chosen by the POTW.” 40 C.F.R. § 403.7(a)(3)(iv) (1985). The rule proceeds to define federal sludge requirements by reference to regulations issued under other environmental statutes. 40 C.F.R. § 403.7(a)(1)(h) (1985). P- EPA argues that NRDC’s challenge to this portion of the removal credit rule is time-barred. Section 509(b)(1) of the Clean Water Act provides that a petitioner may obtain review of such a rule if a petition is filed “within ninety days from the date of ... promulgation, ... or after such date only if such application is based solely on grounds which arose after such ninetieth day.” 33 U.S.C. § 1369(b)(1). EPA argues that because the sludge regulations have remained unchanged “for the past six years,” they cannot be challenged in this court now. Brief for EPA at 21. This argument is not persuasive. First, the 1984 rule differs from its predecessor rules, both in its sludge provisions and in other significant features which affect sludge contamination. Second, regardless of any differences between the 1984 rule and earlier rules, EPA submitted the entire 1984 rule for public comment. Third, we are empowered to entertain NRDC’s claim because NRDC bases its argument on “grounds which arose after [the] ninetieth day” following promulgation of earlier removal credit rules, as provided by 33 U.S.C. § 1369(b)(1). EPA’s sludge regulations were already overdue in 1979, when EPA called for comments on the 1981 rule, but at that time EPA was only one year beyond the statutory deadline, and the sludge regulations were said to be close to proposal. Yet as of October, 1985 the Federal Register revealed that the section 405(d) regulations had yet to be proposed, let alone promulgated. A final rule is now promised for July, 1987. Current and Projected Rulemakings, 50 Fed.Reg. 44672 (1985). For these reasons, we hold that EPA’s failure to promulgate these regulations and the others required by section 405 as a precondition to the granting of removal credits defeats its contention that NRDC is time-barred in its challenge. C. NRDC argues that the removal credit rule, as it pertains to sludge, is in violation of the statute because no regulations under section 405(d) have been promulgated by EPA. As a consequence, NRDC argues, no removal credits can be authorized. NRDC rejects EPA’s contention that the regulations which have been issued under other environmental statutes constitute section 405(d) regulations, claiming that such a “grab-bag” of regulations cannot constitute the comprehensive framework of sludge regulations required by Congress in sections 405(d) and 307(b)(1). EPA, on the other hand, asserts that its rule, by incorporating regulations issued under other environmental statutes, meets the requirement of section 405(d) that “the Administrator ... shall develop and publish ... regulations providing guidelines for the disposal [and utilization] of sludge....” 33 U.S.C. § 1345(d). EPA argues that because such sludge regulations exist, removal credits may be authorized under section 307(b)(1). Section 405 sludge regulations must “specify factors to be taken into account in determining the measures and practices applicable to each” method of utilization or disposal of sludge, and “identify concentrations of pollutants which interfere with such use or disposal.” 33 U.S.C. § 1345(d). According to a report prepared for EPA, the major methods of sludge disposal are landfill (51% of total tonnage), incineration (31%), land spread (8%), and ocean dumping (11%). Assessment of the Impact of Industrial Discharges on Publicly Owned Treatment Works 1:10 (1981) (report prepared for EPA by JRB Associates). For each of these methods, EPA must set limits of concentration for each of the priority pollutants found in POTW sludge. EPA’s 40-POTW study found that over 100 of the 129 priority pollutants are to be found in sludge. Forty of these were detected in at least 10% of the samples, and 24 of these were detected in at least 50% of the samples. Id. at B54. A number of regulations issued under other statutes do affect aspects of sludge disposal, and they are referenced by the removal credit rule. In promulgating the 1981 rule, EPA stated that “the section 405 regulations will, to a large degree, simply reference the existing requirements.” 46 Fed.Reg. 9428. However, this regulatory patchwork, sewn together from pieces of regulations authorized by other statutes, is able to protect against only a few of the most extreme environmental consequences of sludge contamination. We agree with NRDC that the regulations referenced in the current rule, which are if anything fewer than those listed in the 1981 rule, do not, nor were they intended to, provide the comprehensive standards for sludge disposal intended by section 405(d). They leave many aspects of sludge disposal completely unregulated. For example, EPA has defined safe limits for two toxics, cadmium and PCBs, but only when they are landfilled or land spread. Mercury limits are defined only for incineration. Landfill regulations issued under the Resources Conservation and Recovery Act, 42 U.S.C. 6901 et seq., specify impermissible concentrations of certain metals in ground water, but they do not specify such concentrations for sludge. Distribution and marketing regulations, which were in the preproposal draft stage in May of 1980 but which have still not been proposed, would, according to EPA, provide additional limits on cadmium and PCBs, as well as restrictions on toxic metals in sludge products. 1981 Final Rule, 46 Fed.Reg. 9428. Certainly, the existing regulations do nothing to advance the congressional goal of making sludge into a productive asset rather than a toxic liability. Not only do we reject EPA’s argument that it may refer to other regulations in order to satisfy its statutory obligation to enact sludge rules, but EPA’s position is belied by letters from EPA’s Administrator to the chairman of the Senate Oversight Committee. On June 28, 1983, EPA Administrator Ruckelshaus, in response to a letter of inquiry from Senator Robert Stafford, Chairman of the Committee on Environment and Public Works, wrote: I believe that I can, however, commit at this time to promulgating within two years a basic regulation which will establish the programmatic framework for sludge management, list the significant pollutants found in sludge, list sludge uses, and specify factors to be taken into account in determining measures and practices to be applied to the various sludge uses and disposal practices, and issue concentration criteria for those key pollutants for which we now have adequate scientific information to develop regulatory standards. Letter from Administrator Ruckelshaus to Senator Stafford, June 28, 1983 (App. 349). Nearly a year later, Administrator Ruckelshaus again reported to Senator Stafford as follows: We are well underway in our work on several aspects of the technical regulations required by section 405 of the Clean Water Act. I know that these regulations are of special concern to you. We have identified more than 30 pollutants found in sludge that are of initial concern, and we have identified the sludge uses we will regulate. We have begun to assemble the background data and documentation for the regulatory record. Letter from Administrator Ruckelshaus to Senator Stafford, May 22, 1984 (App. 352). These letters clearly recognize EPA’s failure to promulgate the section 405 rules. We hold that despite EPA’s contention that sludge regulations are in place, EPA’s device of incorporating other regulations does not meet the statute’s command for a comprehensive framework to regulate the disposal and utilization of sludge, and that EPA cannot, in the absence of the section 405 regulations, authorize the issuance of removal credits under section 307(b)(1). VII. The Village of Sauget, Illinois operates a POTW that treats waste from nine industrial users, which waste accounts for 98% to 99% of the POTW influent. Cerro Copper is one of the indirect dischargers using the Sauget POTW. Sauget and Cerro challenge EPA’s removal credit formula and complain that the Agency has failed to respond publicly to their comments and has failed to take into account the uniqueness of their situation. These petitioners presented exactly the same substantive issues in a petition filed in the Seventh Circuit challenging the 1981 removal credit rule and EPA’s 1983 pretreatment standards for the copper-forming industry, 40 C.F.R. pt. 468 (1984). The Seventh Circuit “summarily dispose[d]” of the petitioners’ attack on the national pretreatment standards for the copper-forming industry, pointing out that EPA’s rule-making was not addressed to the situations of individual POTWs and that the statute clearly intended that the rules should be national in scope. Cerro Copper Products Co. and Village of Sauget v. Ruckelshaus, 766 F.2d 1060, 1067 (7th Cir.1985). As to Cerro and Sauget’s challenge to the removal credit rule, the court stated that it was without jurisdiction to entertain a challenge to a 1981 rule in a petition filed in November, 1983. Id. at 1069. Possibly anticipating the Seventh Circuit’s response to their challenge to the 1981 removal credit rule, on November 16, 1984, Cerro and Sauget filed a timely petition for review in the Seventh Circuit challenging the 1984 rule. In an order dated January 7, 1985, the Seventh Circuit transferred this petition here, where it was consolidated with the previously filed petition of NRDC. For the reasons discussed in part VI above, we reject EPA’s contention that Cerro and Sauget’s challenge to the removal credit rule is barred because it regards an aspect of the rule that remains basically unchanged from the 1981 rule. However, we find no merit in Cerro and Sauget’s procedural and substantive challenges. First, we observe that EPA is not required to answer publicly every comment, no matter how frivolous, but only to comment on major issues that are central to the exercise of its regulatory discretion. Action on Smoking and Health v. C.A.B., 699 F.2d 1209, 1216 (D.C.Cir.1983) (agency must address major comments); American Standard, Inc. v. United States, 602 F.2d 256, 269 (Ct.Cl.1979) (purpose of statement of basis and purpose is to enable reviewing court to exercise its function); National Nutritional Foods Association v. Weinberger, 512 F.2d 688, 701 (2d Cir.1975) (same). Cerro and Sauget’s claim that their situation is “unique” hardly presents a major issue. EPA responded by letter to petitioners’ claim several times. On the issue of removal credits, the Agency responded twice, once on December 8, 1982, and again, in much more detail, on June 15, 1984. See App. 326-27, 328-36. Cerro and Sauget’s argument boils down to nothing more than a claim that EPA’s rule violates the intent of section 307(b)(1) because it does not exempt Cerro from the pretreatment requirements. They argue that the treatment of Cerro’s wastes by the Sauget POTW is “adequate,” so EPA’s formula must be faulty. However, it is Cerro and Sauget’s proposed method of calculating pollutant removal that is flawed. It amounts to nothing more than seeking removal credit for dilution of pollutants, a “solution” that Congress has explicitly ruled out. Leg.Hist. at 691. See also 40 C.F.R. § 403.6(d). EPA has simply concluded, based on the information provided to it by Cerro and Sauget, that the Sauget POTW’s current waste removal does not meet the standards set by EPA. Cerro and Sauget argue further that the treatment provided by the Sauget POTW will, in a year’s time, be augmented by the treatment provided at a regional POTW now under construction. That POTW will receive wastes from the Sauget POTW and treat them further before discharging them into navigable waters. Cerro and Sauget claim that EPA must consider the joint operation of the two POTWs in calculating the removal credit due Cerro. This is an issue regarding the implementation of the removal credit rule, and is therefore not one that is properly addressed here. If Cerro and Sauget disagree with EPA’s application of the rule to them, they will be able to challenge this application in court. See Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028, 1033 (7th Cir.1984); Tanners’ Council of America, Inc. v. Train, 540 F.2d 1188, 1196 (4th Cir.1976). Their present demand for a promise of exemption on the basis of hypothetical treatments by an as yet uncompleted POTW is premature and irrelevant to the national removal credit rule. VIII. We have concluded that EPA’s 1984 removal credit rule fails to meet the requirements mandated by statute. We will therefore grant NRDC’s petition for review at No. 84-3530. The petition of Cerro Copper and the Village of Sauget at No. 85-3012 will be denied. APPENDIX Exhibit A Section 307(b)(1) of the Clean Water Act, 33 U.S.C. § 1317(b)(1), provides as follows: The Administrator shall, within one hundred and eighty days after October 18, 1972, and from time to time thereafter, publish proposed regulations establishing pretreatment standards for introduction of pollutants into treatment works (as defined in section 1292 of this title) which are publicly owned for those pollutants which are determined not to be susceptible to treatment by such treatment works or which would interfere with the operation of such treatment works. Not later than ninety days after such publication, and after opportunity for public hearing, the Administrator shall promulgate such pretreatment standards. Pretreatment standards under this subsection shall specify a time for compliance not to exceed three years from the date of promulgation and shall be established to prevent the discharge of any pollutant through treatment works (as defined in section 1292 of this title) which are publicly owned, which pollutant interferes with, passes through, or otherwise is incompatible with such works. If, in the case of any toxic pollutant under subsection (a) of this section introduced by a source into a publicly owned treatment works, the treatment by such works removes all or any part of such toxic pollutant and the discharge from such works does not violate that effluent limitation or standard which would be applicable to such toxic pollutant if it were discharged by such source other than through a publicly owned treatment works, and does not prevent sludge use or disposal by such works in accordance with section 1345 of this title, then the pretreatment requirements for the sources actually discharging such toxic pollutant into such publicly owned treatment works may be revised by the owner or operator of such works to reflect the removal of such toxic pollutant by such works. Exhibit B Section 405(d) of the Clean Water Act, 33 U.S.C. § 1345(d), provides as follows: The Administrator, after consultation with appropriate Federal and State agencies and other interested persons, shall develop and publish, within one year after December 27, 1977, and from time to time thereafter, regulations providing guidelines for the disposal of sludge and the utilization of sludge for various purposes. Such regulations shall— (1) identify uses for sludge, including disposal; (2) specify factors to be taken into account in determining the measures and practices applicable to each such use or disposal (including publication of information on costs); (3) identify concentrations of pollutants which interfere with each such use or disposal. The Administrator is authorized to revise any regulation issued under this subsection. Exhibit C The 1984 removal credit rule, 49 Fed.Reg. 31212 (1984) (codified at § 403.7 (1985)) provides as follows: § 403.7 Removal credits. (a) Introduction — (1) Definitions. For the purpose of this section: (i) “Removal” means a reduction in the amount of a pollutant in the POTW’s effluent or alteration of the nature of a pollutant during treatment at the POTW. The reduction or alteration can be obtained by physical, chemical or biological means and may be the result of specifically designed POTW capabilities or may be incidental to the operation of the treatment system. Removal as used in this subpart shall not mean dilution of a pollutant in the POTW. (ii) “Sludge Requirements” shall mean the following statutory provisions and regulations or permits issued thereunder (or more stringent State or local regulations): section 405 of the Clean Water Act; the Solid Waste Disposal Act (SWDA) (including Title II more commonly referred to as the Resource Conservation Recovery Act (RCRA) and State regulations contained in any State sludge management plan prepared pursuant to Subtitle D of SWDA); the Clean Air Act; the Toxic Substances Control Act; and the Marine Protection, Research and Sanctuaries Act. (2) General. Any POTW receiving wastes from an Industrial User to which a categorical Pretreatment Standard(s) applies may, at its discretion and subject to the conditions of this section, grant removal credits to reflect removal by the POTW of pollutants specified in the categorical Pretreatment Standard(s). The POTW may grant a removal credit equal to or, at its discretion, less than its consistent removal rate. Upon being granted a removal credit, each affected Industrial User shall calculate its revised discharge limits in accordance with subparagraph (4) of this paragraph. Removal credits may only be given for indicator or surrogate pollutants regulated in a categorical Pretreatment Standard if the categorical Pretreatment Standard so specifies. (3) Conditions for authorization to give removal credits. A POTW is authorized to give removal credits only if the following conditions are met: (i) Application. The POTW applies for, and receives, authorization from the Approval Authority to give a removal credit in accordance with the requirements and procedures specified in paragraph (e) of this section. (ii) Consistent removal determination. The POTW demonstrates and continues to achieve consistent removal of the pollutant in accordance with paragraph (b) of this section. (iii) POTW local pretreatment program. The POTW has an approved pretreatment program in accordance with and to the extent required by Part 403; provided, however, a POTW which does not have an approved pretreatment program may, pending approval of such a program, conditionally give credits as provided in paragraph (d) of this section. (iv) Sludge requirements. The granting of removal credits will not cause the POTW to violate the local, State and Federal Sludge Requirements which apply to the sludge management method chosen by the POTW. Alternatively, the POTW can demonstrate to the Approval Authority that even though it is not presently in compliance with applicable Sludge Requirements, it will be in compliance when the Industrial User(s) to whom the removal credit would apply is required to meet its categorical Pretreatment Standard(s) as modified by the removal credit. If granting removal credits forces a POTW to incur greater sludge management costs than would be incurred in the absence of granting removal credits, the additional sludge management costs will not be eligible for EPA grant assistance. (v) NPDES permit limitations. The granting of removal credits will not cause a violation of the POTW’s permit limitations or conditions. Alternatively, the POTW can demonstrate to the Approval Authority that even though it is not presently in compliance with applicable limitations and conditions in its NPDES permit, it will be in compliance when the Industrial User(s) to whom the removal credit would apply is required to meet its categorical Pretreatment Standard(s), as modified by the removal credit provision. (4) Calculation of revised discharge limits. Revised discharge limits for a specific pollutant shall be derived by use of the following formula: (b) Establishment of Removal Credit; Demonstration of Consistent Removal. A POTW may be authorized to grant a removal credit that does not exceed its consistent removal rate. In order to demonstrate consistent removal, the POTW shall, for each pollutant with respect to which removal credit authorization is sought, collect influent and effluent data and calculate consistent removal in accordance with the following requirements. As a condition of retaining removal credit authorization, the POTW’s consistent removal must continue to be equal to' or greater than the removal credit. (1) Number of samples. At least twelve representative samples of influent and effluent shall be taken at approximately equal intervals throughout one full year. Upon concurrence of the Approval Authority, a POTW may utilize an historical data base either in lieu of or as a supplement to these twelve samples. In order to be approved, the historical data base must be representative of the yearly and seasonal conditions to which the POTW is subject and be representative of the POTW’s performance for at least one year. As an alternative to the above, a POTW, upon concurrence of the Approval Authority, may utilize an alternative sampling design, as long as the alternative design provides for samples to be taken at times which are representative of the POTW’s normal operating conditions and the different seasonal conditions to which the POTW is subject. (2) Method of Sampling. The POTW must use the composite sampling method unless the grab sampling method is more appropriate. A description of these methods and suggestions on when each method should be used are included in Appendix E as guidance. (3) Method of Analysis for Pollutants. The POTW shall analyze the samples for pollutants in accordance with the analytical techniques prescribed in 40 CFR Part 136. If 40 CFR Part 136 does not contain analytical techniques for the pollutant in question, or if the Approval Authority determines that Part 136 analytical techniques are inappropriate, the analysis shall be performed using validated analytical methods or any other applicable analytical procedures approved by the Approval Authority, including procedures suggested by the POTW. (4) Calculation of Consistent Removal. (i) The consistent removal, denoted by r, for a specific pollutant shall be the difference between the average concentrations of the pollutant in the influent of the POTW, denoted by I, and the average concentrations of the pollutant in the effluent of the POTW, denoted by E, divided by the average concentrations of the pollutant in the influent, denoted by I, as follows: The average concentrations of the pollutant in the influent and effluent shall be calculated by taking the arithmetic average of all influent and effluent data, respectively. In calculating consistent removal under the subparagraph, all sample data must be used. (ii) If a pollutant is only measurable in some of the influent and effluent samples (including the situation where it is not measurable in any effluent samples) and the POTW elects to calculate consistent removal in accordance with paragraph (b)(4)(i), influent and effluent observations below the limit of detectability should be assigned a value equal to the limit of detectability. In calculating consistent removal under paragraph (b)(4)(i), all sample data, including those set at the limit of detectability, must be used. (iii) If a pollutant is only measurable in some influent and effluent samples (including the situation where it is not measurable in any effluent samples) and the POTW elects not to calculate consistent removal in accordance with paragraph (b)(4)(i), or if a pollutant is not measurable in any of the influent samples (in which case the sample data may not be used to calculate consistent removal in accordance with paragraph (b)(4)(i)), the POTW may (A) use historical data as provided in paragraph (b)(1) of this section to calculate consistent removal, or (B) upon the concurrence of the Approval Authority, the POTW may use data from treatability studies, demonstrated removal at similar treatment facilities or provide some other alternative means to demonstrate its consistent removal. (iv) For purposes of this paragraph “measurable” refers to the ability of the analytical method to quantify as well as identify the presence of the pollutant in question. “Limit of detectability” refers to the lowest limit at which the analytical method can quantify the pollutant in question. (c) Provisional credits. For pollutants which are not being discharged currently (i.e., new or modified facilities, or production changes) the POTW may apply for authorization to give removal credits prior to the initial discharge of the pollutant. Consistent removal shall be based provisionally on data from treatability studies or demonstrated removal at other treatment facilities where the quality and quantity of influent are similar. Within 18 months after the commencement of discharge of pollutants in question, consistent removal must be demonstrated pursuant to the requirements of paragraph (b). If, within 18 months after the commencement of the discharge of the pollutant in question, the POTW cannot demonstrate consistent removal pursuant to the requirements of paragraph (b) of this section, the authority to grant provisional removal credits shall be terminated by the Approval Authority and all Industrial Users to whom the revised discharge limits had been applied shall achieve compliance with the applicable categorical Pretreatment Standard(s) within a reasonable time, not to exceed the period of time prescribed in the applicable categorical Pretreatment Standard(s), as may be specified by the Approval Authority- (d) Exception to POTW Pretreatment Program Requirement. A POTW required to develop a local pretreatment program by § 403.8 may conditionally give removal credits pending approval of such a program in accordance with the following terms and conditions: (1) All Industrial Users who are currently subject to a categorical Pretreatment Standard and who wish conditionally to receive a removal credit must submit to the POTW the information required in § 403.-12(b)(l)-(7) (except new or modified industrial users must only submit the information required by § 403.12(b)(l)-(6)), pertaining to the categorical Pretreatment Standard as modified by the removal credit. The Industrial Users shall indicate what additional technology, if any, will be needed to comply with the categorical Pretreatment Standard(s) as modified by the removal credit; (2) The POTW must have submitted to the Approval Authority an application for pretreatment program approval meeting the requirements of §§ 403.8 and 403.9 in a timely manner, not to exceed the time limitation set forth in a compliance schedule for development of a pretreatment program included in the POTW’s NPDES permit, but in not [sic] case later than July 1, 1983, where no permit deadline exists; (3) The POTW must: (i) Compile and submit data demonstrating its consistent removal in accordance with paragraph (b) of this section; (ii) Comply with the conditions specified in paragraph (a)(3) of this section; and (iii) Submit a complete application for removal credit authority in accordance with paragraph (e) of this section; (4) If a POTW receives authority to grant conditional removal credits and the Approval Authority subsequently makes a final determination, after appropriate notice, that the POTW failed to comply with the conditions in paragraphs (d)(2) and (3) of this section, the authority to grant conditional removal credits shall be terminated by the Approval Authority and all Industrial Users to whom the revised discharge limits had been applied shall achieve compliance with the applicable categorical Pretreatment Standard(s) within a reasonable time, not to exceed the period of time prescribed in the applicable categorical Pretreatment Standard(s), as may be specified by the Approval Authority. (5) If a POTW grants conditional removal credits and the POTW or the Approval Authority subsequently makes a final determination, after appropriate notice, that the Industrial User(s) failed to comply with the conditions in paragraph (d)(1) of this section, the conditional credit shall be terminated by the POTW or the Approval Authority for the non-complying Industrial User(s) to whom the revised discharge limits had been applied shall achieve compliance with the applicable categorical Pretreatment Standard(s) within a reasonable time, not to exceed the period of time prescribed in the applicable categorical Pretreatment Standard(s), as may be specified by the Approval Authority. The conditional credit shall not be terminated where a violation of the provisions of this paragraph results from causes entirely outside of the control of the Industrial User(s) or the Industrial User(s) had demonstrated substantial compliance. (6) The Approval Authority may elect not to review an application for conditional removal credit authority upon receipt of such application, in which case the conditionally revised discharge limits will remain in effect until reviewed by the Approval Authority. This review may occur at any time in accordance with the procedures of § 403.11, but in no event later than the time of any pretreatment program approval or any NPDES permit reissuance thereunder. (e) POTW application for authorization to give removal credits and Approval Authority review — (1) Who must apply. Any POTW that wants to give a removal credit must apply for authorization from the Approval Authority. (2) To whom application made. An application for authorization to give removal credits (or modify existing ones) shall be submitted by the POTW to the Approval Authority. (3) When to apply. A POTW may apply for authorization to give or modify removal credits at any time. (4) Contents of the Application. An application for authorization to give removal credits must be supported by the following information: (i) List of pollutants. A list of pollutants for which removal credits are proposed. (ii) Consistent Removal Data. The data required pursuant to paragraph (b). (iii) Calculation of revised discharge limits. Proposed revised discharge limits for each affected subcategory of Industrial Users calculated in accordance with paragraph (a)(4) of this section. (iv) Local Pretreatment Program Certification. A certification that the POTW has an approved local pretreatment program or qualifies for the exception to this requirement found at paragraph (d) of this section. (v) Sludge Management Certification. A specific description of the POTW’s current methods of using or disposing of its sludge and a certification that the granting of removal credits will not cause a violation of the sludge requirements identified in paragraph (a)(3)(iv) of this section. (vi) NPDES Permit Limit Certification. A certification that the granting of removal credits will not cause a violation of the POTW’s NPDES permit limits and conditions as required in paragraph (a)(3)(v) of this section. (5) Approval Authority Review. The Approval Authority shall review the POTW’s application for authorization to give or modify removal credits in accordance with the procedures of § 403.11 and shall, in no event, have more that [sic] 180 days from public notice of an application to complete review. (6) EPA review of State removal credit approvals. Where the NPDES State has an approved pretreatment program, the Regional Administrator may agree in the Memorandum of Agreement under 40 CFR 123.24(d) to waive the right to review and object to submissions for authority to grant removal credits. Such an agreement shall not restrict the Regional Administrator’s right to comment upon or object to permits issued to POTW’s except to the extent 40 CFR 123.24(d) allows such restriction. (7) Nothing in these regulations precludes an Industrial User or other interested party from assisting the POTW in preparing and presenting the information necessary to apply for authorization. (f) Continuation and withdrawal of authorization — (1) Effect of authorization. (i) Once a POTW has received authorization to grant removal credits for a particular pollutant regulated in a categorical Pretreatment Standard it may automatically extend that removal credit to the same pollutant when it is regulated in other categorical standards, unless granting the removal credit will cause the POTW to violate the sludge requirements identified in (a)(3)(iv) of this section or its NPDES permit limits and conditions as required by (a)(3)(v). If a POTW elects at a later time to extend removal credits to a certain categorical Pretreatment Standard, industrial subcategory or one or more Industrial Users that initially were not granted removal credits, it must notify the Approval Authority. (2) Inclusion in POTW permit. Once authority is granted, the removal credits shall be included in the POTW’s NPDES Permit as soon as possible and shall become an enforceable requirement of the POTW’s NPDES permit. The removal credits will remain in effect for the term of the POTW’s NPDES permit, provided the POTW maintains compliance with the conditions specified in subparagraph (4) of this paragraph. (3) Compliance monitoring. Following authorization to give removal credits, a POTW shall continue to monitor and report on (at such intervals as may be specified by the Approval Authority, but in no case less than once per year) the POTW’s removal capabilities. A minimum of one representative sample per month during the reporting period is required, and all sampling data must be included in the POTW’s compliance report. (4) Modification or withdrawal of removal credits, (i) Compliance with the conditions in paragraph (a)(3)(iii)-(v) of this section may be examined by the Approval Authority whenever it elects and must, at the very least, be examined whenever the POTW’s NPDES permit is reissued. If the Approval Authority determines, on the basis of compliance monitoring reports or other information available to it, that the conditions specified in paragraphs (a)(3)(iii) — (v) of this section are not being met, the Approval Authority shall withdraw the POTW’s authority to grant removal credits or modify those credits in accordance with the procedures specified in subparagraph (iii) below. (ii) If, during the term of the POTW’s NPDES permit, the Approval Authority determines that the POTW’s consistent removal rate is consistently and substantially lower than the removal credit specified in the POTW’s NPDES permit, the Approval Authority shall either withdraw the POTW’s authority to grant removal credits or modify those credits in accordance with the procedures specified in subparagraph (iii) below. (iii) If the Approval Authority tentatively determines, under subparagraphs (i) or (ii) above, that the withdrawal of a POTW’s authority to grant removal credits or modification of those credits is warranted, the Approval Authority shall, in accordance with the procedures specified in § 403.-11(b)(1) and (2) of this section, issue a public notice, provide a public comment period of at least 30 days and provide an opportunity for interested persons to request a public hearing. The mailing list for the public notice shall include, at a minimum, the POTW and Industrial Users to whom revised discharge limits have been applied. If the Approval Authority finally determines to withdraw the POTW’s authority to grant removal credits or to modify those removal credits the POTW is authorized to grant, it shall notify the POTW, all Industrial Users to whom revised limits have been applied and each person who has requested individual notice of its decision and the basis for that decision. Notice shall also be published in the same newspaper as the original notice of the tentative determination was published. Following such notice and modification or withdrawal, all Industrial Users to whom revised discharge limits have been applied shall be subject to the modified discharge limits or the discharge limits prescribed in the applicable categorical Pretreatment Standard(s), as appropriate, and shall achieve compliance with such limits within a reasonable time, not to exceed the period of time prescribed in the applicable categorical Pretreatment Standard(s), as may be specified by the Approval Authority. (g) Removal credits in State-run pretreatment programs under § 403.10(e). Where an NPDES State with an approved pretreatment program elects to implement a local pretreatment program in lieu or [sic] requiring the POTW to develop such a program (as provided in 403.10(e)), the POTW will not be required to develop a pretreatment program as a precondition to obtaining authorization to give removal credits. The POTW will, however, be required to comply with the other conditions of paragraph (a)(3) of this section. . Citations to the legislative history, unless otherwise indicated, are to Senate Comm, on Environment and Public Works, A Legislative History of the Clean Water Act of 1977 (Comm. Print 1978) (prepared by the Environmental Policy Division of the Congressional Research Service of the Library of Congress). . There are three levels of wastewater treatment. Primary treatment refers to a physical sedimentation process for removing settleable solids. Secondary treatment refers to a physical/biological process for removing solids and pollutants characterized by biological oxygen demand and pH. Tertirjry treatment involves processes which remove other pollutants such as non-biodegradable toxics. See Assessment of the Impacts of Industrial Discharges on Publicly Owned Treatment Works 1:7 (report prepared for EPA by JRB Associates) (1981) (App. 192): see also Leg.Hist. 329-30. The statute requires that existing POTWs meet standards based on secondary treatment. Tertiary treatment is ordinarily provided only by industrial dischargers or by specially designed POTWs. . Section 307(b)(1) of the Clean Water Act, 33 U.S.C. § 1317(b)(1), is reproduced in its entirety in the Appendix as Exhibit A. . It is fairly arguable that the 1972 Act already required EPA to do what the toxics consent decree mandated. In any case, the 1977 Act clarified the congressional intent to cleanse the nation's waters of toxic pollutants. . As we discuss below, the concept of removal credits had already been adopted by EPA in its 1973 pretreatment regulations. . Congress also increased EPA’s power to enforce the pretreatment program. New section 309(f), 33 U.S.C. § 1319(f), gave EPA direct enforcement authority against industrial users violating pretreatment standards, so that EPA would not be forced to rely solely on municipalities for enforcement. Amended section 402(b)(8), 33 U.S.C. § 1342(b)(8), ensured timely identification of pollutants discharged by indirect dischargers to POTWs. New enforcement provisions were also enacted to ensure compliance with the new section 405 sludge regulations. FWPCA §§ 309(a)(1), (a)(3), & (d), 33 U.S.C. §§ 1319(a)(1), (a)(3), & (d). . For example, if we were to assume a standard that permits the discharge of 20 units per 1000, and if the POTW removes 60% of the pollutants found in the influent, then the indirect discharger can discharge 50 units, which will then be reduced to the permissible standard of 20 units by the POTW before the final discharge into navigable waters. In the absence of removal by the POTW, the indirect discharger itself would, of course, be required to remove all but the 20 units. . In Chemical Manufacturers Ass’n. v. NRDC, — U.S. -, 105 S.Ct. 1102, 84 L.Ed.2d 90 (1985), the Supreme Court reversed a part of the Third Circuit’s judgment in NAME However, the Supreme Court left undisturbed that portion of the judgment that dealt with removal credits. . The full text of the 1984 removal credit rule is reproduced in the Appendix as Exhibit C. . See, e.g., 40 C.F.R. §§ 129.102-129.104 (1984); 40 C.F.R. pts. 405-469 (1984). . We observe that twelve samplings may give a fairly good idea of how much a POTW removes on average, but they are not enough to give a reliable measure' of how much pollutant a POTW removes 95% of the time. . EPA stated that it "seeks ... to avoid placing more extensive sampling requirements on the POTW." 1981 Final Rule, 46 Fed.Reg. at 9424 (1981). In fact, the complaints of industry commenters regarding the "unworkability” of the 1978 and 1981 versions of the removal credit rule were addressed less to the substantive standards of these rules than to the measurement and reporting requirements that they imposed. See, e.g., Brief for intervenors Chicago Ass’n. of Commerce and Industry et al. (CACI Brief), at 4-5 (Chicago POTW did not apply for credits under earlier version of removal credits provision even though it had achieved compliance with applicable limitations): Letter to EPA from Chemical Manufacturers Association, March 9, 1981 (App. 146) (POTWs will not seek authorization to revise categorical standards even though they are removing high percentages of pollutants). Of course, EPA may accommodate such objections, but only within the limits set by statute. The removal credit calculation, if it is to embody the necessary controls, will inevitably burden POTWs somewhat. It is up to the indirect discharger, who has a strong incentive to do so, to reach an arrangement with the POTW so that it can obtain the removal credit due it under the Clean Water Act. . The 1981 change from 95% to 75% consistency was never challenged in the courts. Of course, the fact that NRDC did not challenge a 1981 change that arguably led to some deviation from the statutory requirement does not bar NRDC today from challenging a rule that is clearly in violation of the statute. . In fact, EPA would have us believe that the variability of POTW removal is so slight that the daily maximum will rarely be exceeded, while simultaneously arguing that the variability of POTW removal is so great that the 1981 rule must be relaxed. EPA argues that if POTWs are forced to take their variability into account, they may be prevented from authorizing credits large enough to fully reflect average actual removal. Disregarding the fact that the statute requires compliance with both the consistency requirement and the amount requirement, EPA argues that it is justified in ignoring variability. Brief for Respondent at 35-36. Here, as in its argument that the measurement of consistent removal is too difficult, EPA’s position is that it should be allowed to avoid the plain command of the statute because compliance with the statute would lead to the granting of fewer removal credits. . Unlike the POTW operating under a 50% consistency requirement, the direct discharger, required to operate under a 99% consistency requirement, cannot offset its bad days against its good days. Because it needs a margin of safety, the direct discharger will operate well within its limits, removing more pollutant than it is required to. As a result, it is likely that even as regards total amount removed over the course of a year, the combined performance of POTW and indirect discharger will not equal that of the direct discharger. EPA argues that if the POTW were required to operate under a 99% (or a 95%) consistency requirement, it would be forced to remove more toxics on average than the BAT discharger, because the POTW’s greater variability would require it to set itself a higher level of average removal in order to meet the consistency requirement. Contrary to EPA’s assertions, however, such treatment would not be redundant. Indeed, it is necessary if the POTW and the indirect discharger are to comply with the consistency requirements of BAT limitations or standards. . As Representative Roberts, manager of the legislation in the House, said in introducing the conference bill in 1977, the Clean Water Act of 1972 "fully intended that toxics be regulated. They have not only polluted drinking water and destroyed both commercial and sport fishing, but in many major water bodies they also constitute a hazard to aquatic environment and public health that has yet to be fully recognized.” Leg.Hist. 327. . As NRDC’s attorney put it at oral argument, “It's not much consolation to the beachgoers on a hot day in August to know that the pollution control results for the stream or the ocean were terrific for the months of November to February.” . Such systems serve about 1300 municipalities, with a total population of about 38 million, most of whom live in 58 major cities along the upper East coast, in the upper Midwest, and in the far West. Report to Congress on Control of Combined Sewer Overflow in the United States 1-2 — 1-3 (EPA doc. no. 430/9-78-006) (1978). . The impact on receiving waters is augmented by the fact that pollutants are "resuspended" during CSO events. During dry weather, the sluggish flow through the sewage pipes leads to the sedimentation of some pollutants, which collect in the pipes. During rainy periods, the velocity of water flowing through the pipes “re-suspends” these pollutants, and a part of them pass completely untreated into navigable waters. . EPA's 1981 discussion of CSOs characterized the compromise CSO adjustment factor in the 1981 rule as providing for an "average consistent removal level.” 46 Fed.Reg. 9426. According to the Agency, this is a level of removal computed by taking into account “both those periods of high removal and those periods of low or zero removal.” As with the definition of consistent removal discussed in part III above, here too it remains puzzling, to say the least, that removal which is high at some times and zero at others can be termed consistent. EPA’s penchant for looking solely at long-term effect spreads the quantitative impact of an overflow over many days when there are no overflows, thus understating the true impact of the inconsistency in treatment. . In order to simplify the POTWs’ task, EPA had already permitted them to substitute “a verifiable engineering estimate of the annual hours of Overflow where actual monitoring of Overflow points is infeasible." 1981 Final Rule, 46 Fed.Reg. 9427. . In addition to the argument based on the "negligible” total number of hours per year of CSOs, EPA relied on an analysis of the amount of pollutants that escape treatment during CSO events at eight sites in four cities. Combined Sewer Overflow Toxic Pollutant Study, (EPA doc. no. 440/1-84/304) (1984). “This analysis indicated that, on average, eight percent of metals bypassed the POTW and were thus not treated.” 1984 Final Rule, 49 Fed.Reg. 31220. . The 8-POTW study is not even mentioned in the statement of basis and purpose accompanying the rule. In any case, the data from the very small samples of POTWs that EPA has studied indicate that combined sewer systems vary widely in the duration of their overflows and in the mass of metals that bypass the POTW during overflow events. EPA appears to have relied exclusively on data from the 10 POTWs in concluding that combined sewers overflow on average 7.3% of the time. Yet these data show enormous variability from city to city. In Sacramento, the computer simulation indicated that overflow would occur 3.2% of the time, whereas in Philadelphia it indicated that overflow would occur 13% of the time. See The Elimination of By-Pass Factors in the Removal Credit Package (EPA internal memorandum, Aug. 4, 1982) (App. 271). The 8 POTWs studied in the 1984 study show similar variability, both in duration and in the percentage of metals that bypass the POTW. See Effect of CSO’s on Removal Credits, Table 3 (EPA memorandum to the record, Jan. 9, 1984). The amount of overflow depends not only on the amount and intensity of rainfall at the city in question, but also on factors such as the design of the POTW and the system channelling wastewater into the POTW. Combined Sewer Overflow Toxic Pollutant Study 56 (EPA doc. no. 440/1-84/304, 1984). . NRDC also argues that the Agency violated the Administrative Procedure Act by failing to give notice of the change in its proposed rule and by making the change without having any evidentiary basis in the record for doing so. We agree with EPA that EPA’s proposal was sufficient to apprise interested parties of the subjects and issues to be addressed by the Agency in the final rule. See American Iron and Steel Institute v. EPA, 568 F.2d 284, 293 (3d Cir.1977); Action for Children’s Television v. FCC, 564 F.2d 458 (D.C.Cir.1977). We also agree with EPA that this change would not require any empirical support if it were within the area of discretion that the statute left open to Agency policy-making. See, e.g., Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 2793, 81 L.Ed.2d 694 (1984) ("an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments"). . The NPDES state is the state issuing the POTW’s permit under the National Pollutant Discharge Elimination System, through which, under section 402 of the Clean Water Act, 33 U.S.C. § 1342, the EPA and the states issue permits to dischargers, including POTWs. Such permits are issued for five-year periods. . The 1981 rule referenced the regulations on distribution and marketing of sludge products, which were listed as forthcoming. There is no mention of these regulations in the 1984 rule. . We note that EPA does not disagree with petitioners’ interpretation, but simply states that it will consider their case when they are able to produce the relevant data. As EPA has told petitioners, "Once this information [on the removal efficiency of the as-yet-uncompleted regional POTW] is available, the need for pretreatment at the industries may be eliminated through application of removal credits, if the combined treatment of the facilities at Sauget and [the regional POTW] sufficiently removes the pollutants....” Letter from Bruce R. Barrett, Director, Office of Water Enforcement and Permits, EPA, to Richard J. Kissel, Esq., December 8, 1982 (App. 326).

Illinois State Chamber of Commerce v. United States Environmental Protection Agency

CUDAHY, Circuit Judge. In 1970, Congress passed the provisions that form the basis of what we know today as the Clean Air Act. Pub.Law No. 91-604, 84 Stat.1676 et seq. (1970) (codified at 42 U.S.C. § 7401 et seq.). At the same time the Environmental Protection Agency (“EPA”) was created by Executive Order. 35 Fed.Reg. 15623 (1970). In 1977 Congress amended the Act, adding, among other things, a Part D: “Plan Requirements for Nonattainment Areas.” §§ 171-178, 42 U.S.C. §§ 7501-08. The notion of a nonattainment area was a new one introduced with the 1977 amendments; the idea was to allow the construction of new facilities even in areas not in attainment with national standards for pollution, provided that certain conditions were met. It also required the imposition of certain controls — for example, inspection and maintenance programs for vehicles — in areas that continued to fall short of the standards after certain deadlines. The standards were to be set by the EPA, and ways of determining attainment and nonattainment were also up to EPA. The states, on the other hand, were responsible for determining the geographic boundaries of the attainment and nonat-tainment areas, subject to EPA’s approval; and they were also responsible for submitting to EPA, in 1978, a list of all such areas, with an indication, for each area, whether it was in attainment with respect to the standards. Since the standards were different for different pollutants, and since the appropriate size of the areas might differ for different pollutants, the states really submitted a number of lists, one for each pollutant. The EPA undertook to provide guidance as to the appropriate size of the areas for different pollutants, and was in a position to enforce those guidelines, since final approval of the lists rested with it. When a nonattainment area reached attainment (according to EPA criteria), the state was entitled to revise and resubmit its list. If EPA agreed with the redesig-nation to attainment, it approved the revision. If it did not, it was required to turn down the request within a certain time period, to give reasons for the refusal and to invite comments before taking final action. (§ 107(5), 42 U.S.C. § 7407(5); § 107(2), 42 U.S.C. § 7407(2).) In 1978 Illinois submitted its lists and they were approved. The list for ozone— or rather, at that time, for photochemical oxidants — divided the Chicago urban area into counties, all of which were listed as nonattainment. In 1983, Illinois revised the list to show that Will and McHenry Counties, two counties near Chicago, were in attainment, and EPA approved the change. A short time later Illinois proposed to upgrade Kane and Du Page Counties, two counties closer to the geographical center of Chicago. This time EPA denied the proposal. By way of explanation EPA did not claim that the counties had failed to meet the ozone standard; instead, EPA pointed to the ozone problem in the larger Chicago urban area. Appeals were taken (directly to this court under § 307(b)(1) of the Clean Air Act, 42 U.S.C. § 7607(b)(1)) both by the Illinois Environmental Protection Agency, the agency entrusted with carrying out the state’s part in the regulation process, and by the Illinois Chamber of Commerce. I Ozone is a significant component of the health-endangering smog that is one product of modern industry and transportation. Ozone can cause serious respiratory problems; when it reaches levels of moderate concentration in the air around us, normal men and women may begin to cough and may feel their chests tighten; they may begin to experience eye irritation; the very sensitive may have asthma attacks. At higher concentrations hospitalization becomes a possibility. Ozone is one of the substances that make up what we call air pollution, and Congress has given the Environmental Protection Agency the task of bringing it under control. Ozone, unlike many other pollutants, is not discharged directly into the atmosphere by the offending source. Ozone production depends on the emission of volatile organic compounds which, under the appropriate meteorological conditions, react to form ozone. Since this reaction requires a certain amount of time, ozone concentrations are typically not found overhead of the sources that produce them, but rather downwind. This process of ozone formation is now rather well documented. Scientists were at first surprised to find ozone concentrations over remote rural areas; there was some speculation that nature itself might be responsible for these formations. But at least by the 1970s it was clear that ozone in rural areas was largely due to the airborne “transport” of ozone precursor chemicals— volatile organic compounds — together with meteorological conditions that eventually would support the production of ozone. In general, ozone appeared to reach peak concentrations downwind of the sources. Thus, studies carried on in 1973 showed that sources in Houston were responsible for ozone concentrations about 15-25 miles downwind, and showed similar, though not so pronounced, results in the Phoenix area. Martinez & Meyer, Urban-Nonurban Ozone Gradients and Their Significance, Symposium Paper, March 12, 1976 (reprinted in Appellee’s Appendix at A-76). In 1974, peak values of ozone were found to arise 5 to 15 miles downwind of Columbus, Ohio. Id. A 1975 study of sites in the Pennsylvania and New Jersey areas tended to show that ozone concentrations would occur 27 to 49 kilometers downwind of the source areas. “This accounts for some of the ozone previously observed in the nonindustrial, low-traffic density area of Ancora, N.J., where concentrations of primary pollutants are low, but where ozone daily max-ima frequently exceed the federal standard. Thus, photochemical air pollution [ozone] in this area is a regional rather than a local phenomenon, and ozone resulting from emissions from the urban complex is widespread and not confined to the complex itself.” Kleiner, Transport of Photochemical Air Pollution, 9 Environmental Science and Technology 886 (1975). See also EPA 600/3-77-017, Proceedings of a Symposium on 1975 Northeast Oxident Transport Study, Research Triangle Park, N.C. (1976); EPA, Mt. Storm, W.Va.-Gor-man, Md.-Keyser, W.Va.' Air Pollution Abatement Activity, No. APTD-0656 (April 1971). Given these studies, it is natural to suppose that the Chicago-northwest Indiana area contributes much of the ozone pollution that occurs along the western shore of Lake Michigan; and indeed one study concludes that that is precisely the case: along Lake Michigan, through Milwaukee and beyond, “Chicago-northwest Indiana acts as a giant volume source resulting in a significant fraction of the ozone monitored on alert-level days.” Lyons & Cole, Photochemical Oxidant Transport, 15 J. Applied Meteorology 733 (1976). In 1976 hourly average values as high as .30 ppm (parts per million) (the national standard is now set at .12 ppm), with excursions above .40 ppm, recorded in southeastern Wisconsin were attributed by the study to sources in the Chicago area. Nevertheless, we will not, in this opinion, make any factual assumptions about the direction in which ozone is transported away from the Chicago area; our only assumption, one which is not denied by either party, is that ozone tends to show up at varying distances downwind from the source. II A. Prior to the passing of the 1977 Amendments to the Clean Air Act, the EPA had developed an “offset” policy to moderate some of the harsh consequences of a state’s failure to attain a standard set under the 1970 Act. 41 Fed.Reg. 55528-29 (1976); D. Currie, Air Pollution 6-2 (1981). Instead of prohibiting the construction of all new facilities in areas that had not attained federal standards, the EPA was prepared to permit such construction provided that the pollution produced by the new source was at least offset by reductions in emissions from existing sources. Because of the regional nature of the ozone problem, EPA advocated allowing ozone created by new sources to be offset by reductions anywhere within a large, urban, ozone-producing area. EPA, Effectiveness of Organic Emission Control Programs as a Function of Geographic Location (April 1977 memorandum) (reprinted in Appellee’s Appendix at A-249). EPA saw little benefit from focusing VOC (volatile organic compounds) programs on urban areas with fewer than 200,000 inhabitants; instead, ozone control was aimed at the larger areas. In the memorandum just cited, a map indicated the urban-ozone problem areas with shaded circles; Chicago and northwest Indiana were together in one large shaded area. Of the offset policy, the memorandum says that a major new VOC source locating within one of the shaded areas should be required to obtain emission offsets from existing sources within that same area. Id. at 32 (emphasis in original). The assumption that the offset policy would apply in all urban areas — that is, the assumption that urban areas failed to meet the ozone standard (at the time, .08 ppm) — was not based on any monitoring of the air in those areas, but on general knowledge of the process of ozone production. One important reason for the 1977 Amendments to the Clean Air Act was to provide a statutory basis for the offset policy. See D. Currie, supra, at 6-2. This Congress did by introducing the notion of a “nonattainment area.” § 171, 42 U.S.C. § 7501. Each state was, with EPA approval, to provide a list dividing the state into areas — perhaps a different division for different pollutants — showing for each area whether it was in attainment of the standard for a certain pollutant; nonattainment of the standard; or as of yet unclassifiable. § 107(d)(1), 42 U.S.C. § 7407(d)(1). Within the nonattainment areas provisions of the statute based on the offset policy were to apply. See, e.g., § 173, 42 U.S.C. § 7503. It was up to the states to determine the appropriate geographic size of these areas; but EPA had to approve and promulgate the list, and it was up to EPA to offer guidance as to what sizes would be acceptable, and what sizes would not. H.R. Rep. No. 294, 95th Cong., 1st Sess., 1977 U.S. Code Cong. & Ad.News 1077, 1292; § 107(d), 42 U.S.C. § 7407(d). For some pollutants, EPA discharged this duty with a fair amount of precision. Thus, for sulfur dioxide: Generally where EPA promulgated a designation for S02 the minimum area was to be the county in which the violating monitoring site was located. And for carbon monoxide: A designation of nonattainment for the entire urban core area ... was desirable, but smaller area designations were acceptable since CO violations are most pervasive in downtown areas---- 43 Fed.Reg. 8962-63 (1978). But in the matter of ozone, perhaps because of the essentially different way ozone is produced, EPA gave no clear guidance. There was talk that suggested that an entire urbanized area should be considered one nonattainment area for ozone, because all of the sources in a city were assumed to contribute to the ozone problem in the area. 44 Fed.Reg. 20376 (1979); 43 Fed.Reg. 45997 (1978); 43 Fed.Reg. 8962 (1978). See also Raffle, Env.Rep. (BNA) Monograph # 27 (1979) (most major urban areas in the U.S. designated as nonattainment areas); 9 Env.Rep. — Current Developments (BNA) 1812 (1979) (most cities nonattainment in spite of lowered standard). On that theory, the larger Chicago urban area should have been one nonattainment area; and yet when Illinois submitted its first list, the Chicago urban area was divided into counties, each county listed as — apparently—a separate nonattainment area. 43 Fed.Reg. 8962, 8988-89 (1978). EPA also advanced a slightly different theory, that a nonattainment area for ozone must be large enough to include both the polluted area and all major sources of the ozone pollution in that area, a theory obviously rooted in the offset theory out of which the notion of a nonattainment area had come. See Memorandum from David Hawkins to Regional Administrators of USEPA, January 3, 1978 (reprinted in Ap-pellee’s Appendix at A-39) (for ozone, regional offices should require “that the designated area be of sufficient size to include most of the hydrocarbon sources”); 46 Fed. Reg. 55724 (1981) (“A nonattainment area should be as small as possible while encompassing all areas of expected violations and all sources of significant impact on those violations.”); 48 Fed.Reg. 46084 (1983) (“[T]he designated nonattainment area should be of sufficient size to include most of the significant hydrocarbon sources.”) But it is clear that EPA never took that theory seriously. It never proposed that southeastern Wisconsin and Chicago be part of the same nonattainment area, for example, as it should have under the theory, if Chicago sources cause Wisconsin ozone. This theory is also inconsistent with the “urbanized area” theory, since on the urbanized area theory the peak ozone concentration area, miles downwind, would not be included in the nonattainment area for a city; but under the “polluted area plus sources” theory, it must be. Again, under this theory EPA should not have approved the division of the area into counties, since pollution in one county may be caused by sources in another. And finally, to top off the confusion, in 1983 EPA granted a change in status from nonattainment to attainment for Will and McHenry counties, 48 Fed.Reg. 21947 (1983); yet later EPA conceded that Will County, at least, contained significant sources of VOC emissions contributing to ozone pollution in the Chicago area. 49 Fed.Reg. 24130 (1984). If sources are to be in the same nonattainment area as the pollution they produce, Will County ought to be in the Chicago nonattainment area. We might have supposed that EPA was not serious about either theory, having allowed Illinois to treat the separate counties in the Chicago metropolitan area as separate nonattainment areas, if it were not for the EPA action that gives rise to the present litigation. For EPA has refused to upgrade two counties in the Chicago area, in spite of the fact that no violations have been monitored in those counties. B. Section 107(d)(5) of the Clean Air Act, as amended in 1977, permits states to propose a revision in the status of nonattainment areas to the EPA: A State may from time to time review, and as appropriate revise and resubmit, the list required under this subsection. The Administrator shall consider and promulgate such revised list in accordance with this subsection. 42 U.S.C. § 7407(d)(5). A change in status is called for when an area is in attainment with the national standard set by EPA. For ozone the following standard applies: The level of the national primary and secondary ambient air quality standards for ozone ... is 0.12 part per million____ The standard is attained when the expected number of days per calendar year with .maximum hourly average concentrations above 0.12 part per million ... is equal to or less than one____ 40 C.F.R. § 50.9 (1979). As proof of attainment EPA requires data showing no violations over the previous year, or on the average less than one full day in violation per year, over three years. Violations are measured at monitoring sites. Guidelines for the Interpretation of Ozone Air Quality Standards (EPA 450/4-79-003). In January, 1983, Illinois submitted a revised list in which Kane and Du Page Counties each would have been upgraded to attainment status for ozone, along with data showing that no violations had been monitored in those counties. EPA refused to approve the change. In the proposed rulemaking that denied Illinois’ request, EPA said: Because the prevailing winds during the ozone season are from south through west, ozone precursor emissions from DuPage and Kane Counties can contribute significantly to ozone NAAQS [national ambient air quality standards] ex-ceedances which continue to be observed in the Chicago area____ These counties must continue to be considered as part of the Chicago urbanized ozone nonattainment area for the purpose of the 1982 [state implementation plan]. 48 Fed.Reg. 46084. Later, in the final rule-making, answering objections raised by the state, EPA continued to rely on two separate theories, first, that a nonattainment area must include all the sources that contribute to pollution in that area; and second, that an urban ozone nonattainment area must include the entire urbanized area: [I]t is important that the nonattainment areas be of sufficient size to include all emissions sources ... which contribute significantly to the violation of NAAQS. 49 Fed.Reg. 24130. EPA’s determination is based upon the fact that these counties are part of major urbanized areas____ 49 Fed.Reg. 24130. As we have pointed out already, these theories are not only apparently inconsistent with one another (the first would require Chicago sources to be part of the southeastern Wisconsin non-attainment area, if EPA meteorological information is right, whereas the second evidently would not), they are both inconsistent with the action EPA took in originally approving the Illinois ozone list for the Chicago area by counties. Illinois, having gotten its list by counties approved in 1978, and having gathered data to show that two of the original nonattainment areas, Kane and Du Page Counties, are now in attainment, brings this appeal to protest the EPA action. (Although separate actions were brought by the Illinois Environmental Protection Agency and the Illinois Chamber of Commerce, for simplicity we will treat their arguments together as arguments of the Illinois litigants.) Illinois argues that, since no violations have been monitored in Kane or Du Page Counties, and since those counties have been approved as separate attainment-nonattainment areas, EPA is either basing a nonattainment status for those areas on air quality monitored in other areas; or else it is now trying to change the borders of the nonattainment areas to make all of the Chicago area — including Kane and Du Page Counties — one nonat-tainment area. If it is doing the first, the state argues, then it is doing something not authorized by the statute, which authorizes the EPA to use only local air quality to determine the status of an area; and in addition, according to Illinois, EPA has not shown that emissions in Kane and Du Page actually contribute to the ozone problem in the core Chicago area and downwind. If, on the other hand, it is trying to change the borders, then under Bethlehem Steel v. EPA, 723 F.2d 1303 (7th Cir.1983) (as lili-nois reads it), it is doing something it may not do. As the state sees it, EPA’s authority over the boundaries of nonattainment areas is limited to modifying changes in those boundaries proposed by the states, and does not extend to changing the boundaries when the state has proposed a change in attainment status. C. Since the statute does not require a hearing before EPA promulgates a rule denying a state’s redesignation request, the proper standard of review, under § 706(2)(A) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), is the “arbitrary and capricious” standard. In this case EPA announced a proposed rulemaking that was apparently in conflict with earlier decisions. EPA is entitled to change its policy, but it must do so on the basis of a reasoned analysis. Motor Vehicle Manufacturers Assoc. v. State Farm Mutual Automobile Ins., 463 U.S. 29, 57, 103 S.Ct. 2856, 2874, 77 L.Ed.2d 443 (1983). If EPA changed its policy, it did not say so; and neither did it explain how its justification of its most recent action could be made consistent with its earlier actions, if no change in policy was involved. It must do one or the other. If it has changed its policy, it must explain how and why; if it has not, it must articulate an explanation that will account for both the earlier and the most recent actions it has taken. Until it has done one or the other, its actions will appear to be arbitrary, and rational review in this court will be impossible. Ill We are aware of at least four different ways in which EPA might justify the action it has taken. Each is more or less consistent with the available evidence concerning ozone; but each is also inconsistent with something EPA has said or done in the past. It is not our duty, in reviewing EPA’s action, to pick and choose among the various justifications that might be given. State Farm, 463 U.S. at 43, 103 S.Ct. at 2866. We feel obliged, however, to say enough about the various theories to show how they fall short of making a recognizable pattern out of the pieces in this puzzle, and to suggest how those shortcomings might be remedied. Although the choice of a theory rests ultimately with EPA, we have already seen that one of these theories does not have much to recommend it: the theory which would make a polluted area, together with all areas containing sources contributing to pollution in that area, one nonattainment area. For one thing that theory does not explain the original division into counties, or the separate upgrading of Will and McHenry Counties, acknowledged sources of pollution in the Chicago area. For another thing, in the case of ozone the areas would have to be large; and since ozone pollution occurs downwind of the sources, in some cases the polluted area itself might contribute nothing to the pollution. It should be within EPA’s discretion to allow the upgrading of such areas (something it could not do if both the polluted area and the source made up one nonattainment area). Moreover, our beliefs about the movement of ozone and ozone precursors are subject to revision, as the environment and our knowledge of the environment changes; but the limits of a nonattainment area ought not to be subject to constant revision. And finally a look at the boundaries originally approved by EPA in the eight largest metropolitan areas shows that, with the exception of the Chicago area, the boundaries were large enough in each case to include the entire urbanized area, but that no attempt was made to draw up the boundaries in such a way as to track the movement of ozone away from the sources, as this theory would require. 40 C.F.R. §§ 81.333 (New York), 81.305 (Los Angeles), 81.314 (Chicago), 81.339 (Philadelphia), 81.323 (Detroit), 81.305 (San Francisco), 81.322 (Boston), 81.309 (Washington, D.C.). Hence the theory fails to explain not only what EPA did in the Chicago area, but what it did in those other areas as well. The remaining three theories are more plausible. On the assumption that EPA did approve the counties as separate nonat-tainment areas in 1978, EPA may now be arguing that ozone attainment must be determined at monitors downwind and outside the area itself; or EPA may be arguing that attainment of the ozone standard is to be determined on the basis of ozone precursors monitored within the area itself. Both these theories are consistent with EPA’s desire to make the source area a nonattainment area, without involving the apparently unworkable notion that a polluted area together with all its sources must make up one nonattainment area. Under either of these theories, the present county boundaries remain the boundaries of the nonattainment areas in Chicago, but the attainment status of those areas will depend on ozone pollution elsewhere. On the other hand, EPA may be arguing that it never approved the division of the area into counties, and that Kane and Du Page are part of a unitary Chicago nonat-tainment area. This theory requires an explanation of the original listing, and for the fact that Will and McHenry Counties, arguably part of the larger Chicago area, were upgraded individually. The first of the theories — that attainment of the standard in one area may be determined by the presence of ozone in another area — is not inconsistent with the statute. The relevant provision is a definition: The term “nonattainment area” means, for any air pollutant, an area which is shown by monitored data or which is calculated by air quality modeling (or other methods determined by the Administrator to be reliable) to exceed any national ambient air quality standard for such pollutant. § 171(2), 42 U.S.C. 7501(2). Nothing in the statute says that monitoring must be done within the area itself; indeed, the facts suggest that the best, and perhaps only, way to monitor for ozone would be to monitor downwind. (The word “ambient” is defined in the statute to mean roughly the same as “outdoor;” it does not carry the connotation of “local.”) Since the statute gives the Administrator a certain amount of discretion (“other methods determined by the Administrator to be reliable”), and since other provisions of the Act do not limit that discretion, it would seem to be within the authority of the agency to monitor ozone production at sites downwind. EPA has not set down standards for this sort of off-location measuring, however; existing guidelines suggest a determination of status by means of monitoring within the area. See Guideline for the Interpretation of Ozone Air Quality Standards (EPA 450/4-79-003). If EPA has something different in mind, it should make clear how ozone pollution is to be measured downwind, and that is something it so far has not done. Something similar is true of the second theory, which would base attainment status on the measurement of ozone precursors within the area itself: as the monitoring guideline is currently written, it is written in terms of ozone, and not ozone precursors. Nevertheless, the guidelines are within the power of EPA to change. The current state of scientific knowledge suggests that it would be worse than foolish to start with geographically small areas, for ozone, and then base the attainment status of each area on the monitoring of ozone within that area. Attainment and nonattainment are meant to reflect the contribution of an area to the pollution problem; and perhaps the worst way to determine the contribution of a small area to the ozone problem is to measure for ozone within the area itself. It cannot have been the intention of Congress that EPA choose the worst possible way to measure for the production of pollutants, and nothing prevents EPA from changing its guidelines to reflect one of these views. What we have said so far is on the assumption that EPA in fact approved a division of the Chicago area into counties. As we will see, that is not so clear as Illinois would have us believe. EPA has argued, and we find the argument persuasive, that although the Chicago area is listed by counties, it has been clear all along that insofar as any county was part of the urbanized area or its fringe of development it was to be part of a single nonattainment area, not to be upgraded until the entire area reached attainment. Suppose, for example, Illinois had submitted the original list with Du Page County marked as “attainment” because monitors had shown no violations. It is clear as these things can be that EPA would have disapproved the rating, on the grounds that Du Page was, for purposes of ozone pollution, part of the larger Chicago area. That is precisely what happened with Porter County, Indiana. When EPA solicited comments on the original list, there was an objection to the nonattainment status of Porter County in northwest Indiana. In its reply, EPA did not allege that there had been monitored violations in Porter; instead, it said: The nonattainment designation of Porter County was based on the fact that portions of Porter County are part of the Chicago-northwest Indiana urbanized area. 43 Fed.Reg. 45997 (1978). EPA, as we have seen, had suggested that all urbanized areas were to be treated as units, for ozone, and were to be assumed at the outset not to have attained the standard. Thus, the original listing by counties was very possibly no more than an accident of record-keeping. Congress demanded a list from the states. The EPA asked the states to treat urban areas as unitary nonattainment areas for ozone, as it was authorized to do. Illinois submitted a list, by counties, in which all the counties in the Chicago urban area — and thus the urban area itself — were listed as not in attainment. Although such a list, out of context, is ambiguous between the two interpretations — is Chicago one area consisting of the listed counties, or is each county a separate area? —the circumstances surrounding the promulgation of the list suggest that EPA’s interpretation may be the proper one. When EPA proposed to turn down the request to upgrade Kane and Du Page Counties, it used language that echoed the 1978 comment explaining Porter County’s status: Because the prevailing winds during the ozone season are from south through west, ozone precursor emissions from DuPage and Kane counties can contribute significantly to ozone NAAQS excee-dances which continued to be observed in the Chicago area____ These counties must continue to be considered as part of the Chicago urbanized ozone nonattainment area for the purpose of the 1982 SIP. 48 Fed.Reg. 46084. If we could be certain that this was indeed EPA’s practice all along, we would be unwise to reverse agency action on the basis of the happenstance of a particular way of listing the Chicago urban area in a 1978 list. This “urbanized area” theory would also explain the different treatment of Will and McHenry Counties which, although EPA concedes they contain significant sources of ozone precursors, do not — unlike Kane and Du Page County — contain any part of the Chicago urbanized area, as defined by EPA on the basis of the 1970 census. While this last theory may be the least problematic under existing standards, it suffers from problems of its own. Although large cities are prime contributors to the problem of ozone, so that it makes sense to impose ozone controls on them, there remains the question of how the attainment status of an urban area is to be changed. Will it depend on monitoring within the area itself? For reasons we have explained, a good deal of the ozone created in the Chicago area apparently finds its way downwind into Wisconsin. Although making the area larger reduces the problem — much of the ozone is also found within the urban area itself — the theoretical basis for monitoring for ozone only within an urban area as defined by the census is not presently clear enough to allow for proper review of EPA’s action in this Court. IV Illinois argues that there are other ways for EPA to do what it feels must be done without denying Illinois’ application to upgrade Kane and Du Page Counties. The fact that the parties have brought this litigation to the court of appeals shows that neither side believes that any of the alternatives will provide exactly equivalent results. If EPA could get the same results without blocking the upgrading of Kane and Du Page Counties, then Illinois would have nothing to gain, and EPA nothing to lose, however the appeal came out. Clearly the outcome of the appeal does make a difference; for one thing, certain controls apply to nonattainment areas by operation of the statute. It is essential to the success of the Clean Air Act that these controls apply in the appropriate areas, and we refuse to construe the law in such a way that the controls will apply to areas that suffer from but do not produce ozone pollution but not to areas that produce but do not suffer from such pollution. The automatic imposition of controls gives EPA a certain leverage over the states, and we think such leverage should be available where, but only where, it will be useful. Moreover, since Bethlehem Steel it has been clear that if these areas are mistakenly upgraded, the EPA will not be able unilaterally to return them to their nonat-tainment status. The consequences of a mistaken upgrading are extremely serious, therefore, and we cannot treat the revision process as a game which EPA must lose if it has failed on a previous occasion to be clear about its rationale. The states are entitled to a clear understanding of how areas will be evaluated; but Congress clearly did not intend technical missteps to defeat EPA’s ability to implement the best of current opinions about the nature of pollution. The state suggests that we vacate, and, since the record supports redesignation, reverse the decision of the EPA. It is not true that the record supports redesignation; but since EPA has not made clear the rationale for its action, and since certain of the possible rationales rely on empirical assumptions that should be subjected to the give and take of notice and comment we therefore vacate the decision in its present form and remand for further proceedings consistent with this opinion, State Farm, supra; Atchison, Topeka & Santa Fe Railway Co. v. Wichita Board of Trade, 412 U.S. 800, 93 S.Ct. 2367, 37 L.Ed.2d 350 (1973). Our remand is for reconsideration by EPA and for clarification of the grounds upon which it has dealt or will deal with the Illinois request. EPA will, of course, give Illinois an appropriate opportunity to resPond- . From 1971 to 1979 EPA set down standards for photochemical oxidants. In 1979 the standards were restated in terms of ozone, a major component of photochemical oxidants. 44 Fed. Reg. 8202 (1979). . The Chamber brings this appeal on behalf of its members. EPA has argued that the Chamber has no standing. Clearly the possibility of losing highway funds and the likelihood of increased controls threaten an increase in the cost of doing business in Kane and Du Page Counties, and threaten directly to affect the Chamber’s members. It appears to us, therefore, that the Chamber does have standing. Besides, we have already asked the Chamber and the Illinois agency to divide the issues between them rather than duplicating each other’s briefs, and we would be obliged to consider the Chamber’s arguments in any case, if only as amicus curiae. . The substances of which ozone is formed, known as ozone precursors, are oxides of nitrogen and organic pollutants. Oxides of nitrogen are formed as a result of fuel combustion from mobile and stationary sources. Organic pollutants are emitted primarily from mobile sources and manufacturing facilities. These precursors undergo photochemical oxidation in the presence of sunlight, and form ozone. . The Chamber of Commerce argues that EPA did not follow proper procedures, and that re-designation proceedings must include a formal hearing. It argues that such proceedings are adjudications rather than rulemaking, and thus are subject to the requirements of 5 U.S.C. § 554(c), which requires an agency to provide opportunity for a hearing. Section 554 applies, however, only in the case in which a hearing is required by statute. The Clean Air Act does not require a hearing for redesignation proceedings. It is true that an "opportunity for the oral presentation of data" must be given to interested parties in the case of proceedings that fall under § 307 of the Clean Air Act, 42 U.S.C. § 7607(d)(5); but a § 107 redesignation proceeding is not one that falls under § 307 by the terms of that section. Thus redesignation proceedings would not require hearings (“oral” hearings) even if they were adjudications. Moreover, there is no good reason to think that these proceedings must be considered adjudications. The Administrative Procedure Act defines “rule” to mean any statement "of general or particular applicability and future effect designed to implement, interpret or prescribe law or policy.” 5 U.S.C. § 551(4). That description seems to fit not only “statements" that issue from designation proceedings, see D. Currie, Air Pollution 6-8 n. 9 (1981), but those that issue from redesignation proceedings as well. It is true, as the Chamber points out, that we said in U.S. Steel v. EPA, 605 F.2d 283, 285-86 n. 3 (7th Cir.1979), that the question whether designation proceedings were rulemaking was “not without difficulty;” our concern there, however, was whether designations might be merely preliminary proceedings, governing the future formulation of actual regulations concerning the designated areas, and thus not subject even to the notice and comment requirement. Thus, we cited Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), as involving an analogous proceeding that the Supreme Court held did not rise to the level of rulemaking. The problem in U.S. Steel was thus not whether to require more procedure than notice and comment, but whether even that much was required. In the end we did not decide the issue because the EPA, in calling the proceeding a rulemaking, had brought itself under the requirement to provide notice and the opportunity to comment. To suppose that U.S. Steel decided that these proceedings should be considered adjudications, or that we even considered the question in that opinion, is to misread the opinion. . Among the virtues of this theory is the fact that it would reserve the decision about the boundaries primarily to the state, and the decision about monitoring methods primarily to the EPA. . In its Brief, EPA claims to have relied on monitoring sites in areas downwind of Kane and Du Page Counties (Deerfield, Ill.; Libertyville, Ill.; Evanston, Ill.; Skokie, Ill.; Kenosha, Wis.; and Racine, Wis.), all of which recorded violations of the ozone standard between 1980-82. No general criteria for selecting sites downwind have ever been suggested, however.

Illinois State Chamber of Commerce v. United States Environmental Protection Agency

COFFEY, Circuit Judge, dissenting. The majority concludes that the Environmental Protection Agency (“EPA”) acted arbitrarily and capriciously in failing to adequately explain its basis or theory in denying Kane and Du Page Counties’ request to be reclassified from a status of nonattainment to one of attainment. To support its position, the majority posits several theories (i.e. urban v. county designation) that may explain the EPA’s denial of Kane and Du Page Counties’ redesignation request; and the majority argues that the EPA has failed to consistently apply either of these alleged theories in defining what constitutes an appropriate nonattainment area. Because the majority believes that the EPA failed to consistently apply the same theory in assessing the requests for redesignation, it remands this case to the EPA for further explanation. After reviewing the previous statements issued by the EPA concerning the appropriate size for nonattainment areas and the reason proffered by the EPA for denying Kane and Du Page Counties’ request for redesignation — namely, that Du Page and Kane Counties are within the Chicago urban ozone area and contribute to the urban area’s ozone problem — it is clear that the EPA has applied the same theory jn assessing a request for redesignation from nonattainment to attainment. Specif-icaiiy( the theory applied by the EPA is that the entire Chicago urban area is con-gjdered to be one nonattainment zone and that Kane and Du Page Counties are with-jn that nonattainment zone for purposes of assessing their redesignation requests, since the EPA has consistently applied the theory that the entire Chicago urban area js considered one nonattainment area, there js n0 reason to remand this case to the EPA to clarify its ruling. Thus, I respectfully dissent. This court’s standard of review of a federal agency decision was most recently stated in Motor Vehicle Mfrs. Assn. v. state Farm Mut., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). “The scope of review under the ‘arbitrary and capricious’ standard is narrow an¿ a court jg not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ... In reviewing that explanation, we must ‘consider whether the decision was based on a consideration of relevant factors and whether there has been a clear error of judgment.’ ... Normally, an agency rule would be arbitrary and capricious if 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. 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____ We will, however, ‘uphold, a decision of less than ideal clarity if the agency’s path may reasonably be discerned.’” Id. at 43, 103 S.Ct. at 2866 (citations omitted) (emphasis added). The theory the EPA employed in denying Kane and Du Page Counties’ request for redesignation— that Kane and Du Page Counties are part of the Chicago urban area and will be considered to be in nonattainment until the Chicago urban area achieves attainment— can certainly be “reasonably discerned” from the record. I Congress passed the Clean Air Act in 1970 and established a combined state and federal program to control air pollution. See Pub.L. No. 91-604, 84 Stat. 1676 et seq. 1970. As part of this program Congress required the EPA to establish a National Ambient Air Quality Standard (“NAAQS”), see sections 108 and 109, and required that each state adopt and submit a “state implementation plan” (“SIP”) to the EPA designed to attain the NAAQS in the designated Air Quality Regions (“AQCRs”), section 107(b)-(c), 42 U.S.C. § 7407(b)-(c). Attainment of the NAAQS was to be achieved by 1977. Currie, Air Pollution, § 6-1 (1981). It became apparent, however, that many of the AQCRs would not meet the deadline for compliance with the Clean Air Act. Id. at 62. Thus, in 1977 Congress added subsection (d) and (e) to Section 107 of the Act. See 42 U.S.C. § 7407(d) and (e). Subsection (d) provides that states “submit to the Administrator a list, together with a summary of the available information, identifying those air quality control regions, or portions thereof,” that either satisfy the NAAQS (“attainment”), failed to satisfy the NAAQS (“nonattainment”) or could not be classified because of a lack of information. Nonattainment was defined as “an area which is shown by monitored data or which is calculated by air quality modeling ... to exceed any national ambient air quality standard____” Section 171, 42 U.S.C. § 7501. Each state was required to submit to the EPA a list of those air quality control regions or AQCRs that failed to comply with the NAAQS; the EPA was then to promulgate the list within sixty days of receipt “with such modifications as he [the Administrator] deems necessary.” 42 U.S.C. § 7407(d)(2). For those areas listed as nonattainment, Congress provided that the SIPs were to provide for incremental emission reductions from existing sources in the nonattainment area. 42 U.S.C. § 7502(b)(3). The reductions in pollutants could be achieved through “reasonably available control technology,” id., and through permits restricting the construction and operation of new sources of pollutants in the nonattainment area. 42 U.S.C. §§ 7502(b)(6) and 7503. In line with these regulations, Illinois in 1978 submitted to the EPA, and the EPA promulgated, a list of nonattainment areas. This list included, among others, Cook, Lake, Du Page, Kane, Will, and McHenry Counties. Indiana also submitted its list to the EPA of nonattainment areas that included Porter and Lake Counties in Indiana. Porter and Lake County, Indiana are located along the southern short of Lake Michigan adjoining the Illinois border. Cook and Lake Counties, Illinois are located on the western shore of Lake Michigan just northwest of Lake and Porter Counties, Indiana, while Du Page and Kane Counties are located southwest of Lake County and immediately west of Cook County, Illinois. The County of Will is located south of Cook County while McHenry County is located north of Kane and Du Page Counties. On January 27, 1983, the State of Illinois requested that the EPA redesignate Kane and Du Page Counties from nonattainment to attainment status. To support its request, Illinois noted that the ozone monitors located within those counties had registered no violations of the NAAQS for a three-year period. In its proposed ruling, the EPA denied the redesignation request reasoning that Kane and Du Page Counties were part of the Chicago urban area and contributed to the ozone problem in the Chicago urban area because of the prevailing southwest winds during the summer months. “However, U.S. EPA has determined that the high population densities in Du-Page and eastern Kane Counties are associated with relatively high densities of area and mobile source volatile organic compound emissions. Because the prevailing winds during the ozone season are from south through west, ozone precursors emissions from DuPage and Kane Counties can contribute significantly to ozone NAAQS exceedances which continue to be observed in the Chicago area. U.S. EPA, therefore, proposes to reject the Illinois proposal to redesignate Kane and DuPage Counties to attainment for ozone. These counties will continue to be designated nonattainment until sufficient data is available to warrant a change. These counties must continue to be considered as part of the Chicago urbanized ozone nonattainment area for the purpose of the 1982 SIP.” 48 Fed.Reg. 46082, 46084 (1983). After Illinois submitted comments on the proposed ruling, the EPA, on June 12, 1984, issued its final ruling and denied the state’s request that Kane and Du Page Counties be redesignated to an ozone attainment status. II The majority holds that the EPA’s action in denying Kane and Du Page Counties’ request for redesignation from nonattainment to attainment is arbitrary and capricious as the EPA has failed to set forth a consistent theory in approving the boundaries for the nonattainment areas. Essentially, the majority argues that the EPA has been less than consistent in its decision of whether the nonattainment boundaries should be determined on a county or on an urban wide area basis. Specifically, the majority observes that in 1978 the EPA approved a list submitted by Illinois designating the counties in the Chicago area as nonattainment. The majority next notes that the reason Du Page and Kane Counties were denied redesignation to attainment status was that monitors downwind from these counties in the Chicago urban area have been registering ozone violations. The majority concludes that if the EPA considers the county to be the area unit for defining attainment/nonattainment status and these counties are to be held responsible for ozone measured downwind and outside the county boundaries, the EPA should clarify the standards as to when the county is to be held accountable for ozone outside its borders. On the other hand, the majority observes that the EPA may have considered the entire urban Chicago area as one nonattainment area (as all the counties within the urban area were listed as nonattainment), but that this designation is inconsistent with the EPA’s approval of Illinois’ list of nonattainment areas defined on a county basis. Thus the majority concludes that if the EPA has changed its policy as to how it defines the attainment/nonattainment area “it must explain how and why; if it has not it must articulate an explanation that will account for both the earlier and the most recent actions it has taken.” After reviewing the various statements and rulings issued by the EPA since 1978— the year that the states were to submit a list of those areas it considered to be in nonattainment — the record is clear that the EPA has consistently followed the same policy in assessing a redesignation request from counties located in the Chicago urban area: that any county in the Chicago urban area contributing to the Chicago urban area’s ozone problem will remain in nonat-tainment status until the Chicago urban area problem of ozone is adequately controlled and thus reaches attainment status. In denying Kane and Du Page Counties’ request for redesignation, the EPA stated: “Kane and DuPage counties are part of the Chicago urbanized area and are therefore to be considered nonattainment until the greater Chicago area and its downwind peak impact areas are designated as attainment. This is consistent with EPA’s designation policy for ozone as outlined in the January 3, 1978 memorandum from David G. Hawkins, Assistant Administrator for Air and Waste Management entitled ‘Attainment/Nonattainment Status Designations’____” 49 Fed.Reg. 24128, 24130 (1984) (emphasis added). The Hawkins’ memo discusses the appropriate size of the attainment/nonat-tainment areas. “Priority should be given to those 105 urban areas with populations greater than 200,000. These areas are to be considered nonattainment for oxidants unless monitored data supports attain-ment____ If a state fails to designate any of these areas or submits unacceptable designations, the Regional Office should make the required designations. The Regional Office requires that the designated areas be of sufficient size to include most of the significant hydrocarbon sources. ” See Memorandum from David Hawkins to Regional Administrators of USEPA, January 3, 1978 (reprinted in Appellee’s Appendix at A-39) (emphasis added). Thus, for the past seven years, as far back as 1978, it has been the EPA’s position that the entire urban area should be designated as nonat-tainment, including in this area the significant sources of hydrocarbon precursors. This position is also reflected in the comments that the EPA made when it promulgated the list of nonattainment areas that the states submitted to the EPA: “There are 105 urban areas in the United States with populations greater than 200,000. These major urban areas ... are where the oxidant problem is most severe. ” 43 Fed.Reg. 8962-63 (1978) (emphasis added). Further, in 1978, Porter County, Indiana, a part of the Chicago urban area, requested that it be classified as in attainment with the NAAQS; the EPA, however, denied this request noting “[t]he nonattainment designation of Porter County was based on the fact that portions of Porter County are part of the Chicago-northwest Indiana urbanized area.” 43 Fed.Reg. 45997 (1978) (emphasis added). Finally, in its proposed ruling, denying redesignation of Kane and Du Page Counties, the EPA observes that: “DuPage and eastern Kane Counties are associated with relatively high densities of area and mobile source volatile organic compound emissions. Because the prevailing winds during the ozone season are from south through west, ozone precursors emissions from DuPage and Kane Counties can contribute significantly to ozone NAAQS exceedances which continue to.be observed in the Chicago area.... These counties must continue to be considered as part of the Chicago urbanized ozone nonattainment area____” 48 Fed.Reg. 46084 (1984) (emphasis added). Thus, since 1978 the EPA has been concerned that the entire Chicago urban area be considered one nonattainment area for purposes of determining whether the NAAQS has been satisfied. This areawide designation is consistent with the EPA’s attempt to control the ozone problem. Ozone is an area wide, multi-chemical phenomenon that depends upon the transformations of VOC or hydrocarbon precursors under varying meteorological conditions. State of Texas v. Environmental Protection Agency, 499 F.2d 289, 293 n. 1 (5th Cir.1974), cert. denied, 427 U.S. 905, 96 S.Ct. 3191, 49 L.Ed.2d 1199 (1976). Since science to date has been unable to make exact predictions concerning the transportation of ozone, the designation of an area sufficient in size to control the ozone problem is well within the discretion and expertise of the EPA. See Citizens Against Refinery’s Effects v. Environmental Protection Agency, 643 F.2d 183, 186 (4th Cir.1981). The majority notes that the EPA may have been inconsistent in the theory it applies to determine the appropriate nonat-tainment area as the State originally submitted, and the EPA approved, a list of nonattainment areas based upon the counties boundaries. As the majority concedes, at the time the state submitted its original list to the EPA all counties in the Chicago urban area were listed as nonattainment; and thus the EPA approval of this list does not demonstrate in and of itself that the EPA approved the nonattainment status of this area on a county basis. I would agree with the majority that remand for clarification of the grounds upon which the EPA evaluates a redesignation request would be proper if the approved state list was the only evidence in the administrative record in this case as to the previous action taken by the EPA in approving nonattainment areas. However, as discussed earlier in this dissent, the reports and comments issued by the EPA since 1978 demonstrate that the EPA considered the urban area, sufficient in size to contain the major sources of the VOC precursors, to be the proper size for determining the boundaries of the nonattainment/attainment zone. See 43 Fed.Reg. 8962 (1978); 43 Fed.Reg. 45997 (1978); Memo from David Hawkins to Regional Administrators of USEPA, (January 3, 1978) (Appellee’s Appendix at A-39). Thus, it is clear that the EPA never intended to consider the attainment/nonat-tainment status of the Chicago urban area on a county basis, but rather the EPA considered the entire Chicago urban area as one nonattainment zone. The majority also notes that the EPA’s theory that the entire Chicago urban area is to be considered as one nonattainment zone is inconsistent with several EPA statements that sources of the ozone pollution must be included within the nonattainment area. See Majority opinion at 12 citing 48 Fed.Reg. 46084 and 49 Fed.Reg. 24130. To support this position the majority argues that peak ozone concentrations may be miles downwind from the source, yet under the urbanized area theory these areas would not be included within the nonattainment zone since these areas may not be considered, under the urban area theory, to be part of the nonattainment area because of their rural setting. For example, the majority argues that for the EPA to be truly consistent in its theory that sources of the ozone are to be included within the nonattainment zone, the counties in southeast Wisconsin must be considered as part of the Chicago urban area for non-attainment purposes since the Chicago area contributes or is a source of ozone in southeast Wisconsin; yet, the EPA does not consider southeastern Wisconsin a part of the Chicago urban area nonattainment zone. The majority’s analysis completely misses the point. The EPA, as demonstrated in David Hawkins’ memo in 1978 that suggests the appropriate size for the nonattainment area, was primarily concerned with controlling ozone in urban areas. See also 43 Fed.Reg. 8962 (1978); 43 Fed.Reg. 45997 (1978). In order to reach its goal of attaining compliance with the NAAQS, the EPA suggested that the urban area nonattainment zone include the sources of the ozone (i.e. VOC precursors). The EPA clearly did not intend that rural areas (those with less than a population of 200,000) be considered as part of one massive nonattainment designation simply because ozone from large metropolitan areas may be blown into or effect the rural areas; rather, the EPA was concerned with controlling ozone in the urban area and the best method to reach this goal was to include the sources of the ozone affecting the urban area’s air quality within a single nonattainment zone. See Western Oil & Gas Assoc. v. EPA, 767 F.2d 603 (9th Cir.1985). Further, the fact that the EPA previously approved of the redesignation request of Will and McHenry Counties Illinois from nonattainment to attainment status fails to reach that quantum of legal reasoning to convince me that the EPA has acted arbitrarily and capriciously in denying Kane and Du Page Counties’ request for redesig-nation. In rejecting Illinois argument that Kane and Du Page Counties should be approved for redesignation simply because Will and McHenry Counties were previously approved for redesignation on the basis that ozone monitored within those counties were within the NAAQS, the EPA noted: “The main reason EPA concurred with Illinois’ redesignation request for McHenry and Will Counties was that these areas contained essentially none of the Chicago urbanized area or adjacent fringed areas of development. EPA was aware of the significant YOC emissions for Will County. It was determined that these emissions were dominated by stationary source emissions. These emissions have been and will continue to be significantly reduced as a result of Illinois RACT Regulations.” 49 Fed.Reg. 24128, 24130 (1980). The population of both Will and McHen-ry Counties was less than 200,000 during the period the EPA approved their redesig-nation to attainment status. Thus, the EPA decision to approve the redesignation of Will and McHenry Counties was consistent with its policy that counties with a population of less than 200,000 people were not considered to be part of the urban nonattainment area as defined in the 1970 census. In contrast, both Kane and Du Page Counties’ populations are greater than 200,000 people, and both are sources of ozone precursors that contribute to the ozone in the Chicago urban area. Thus, the fact that the EPA had previously approved the redesignation of Will and Kane Counties does not mean that the EPA has not acted consistently in applying its policy that those counties within the urban area of Chicago would be considered as part of one nonattainment area. The scope of our review under the “arbitrary and capricious” standard is limited and we are not to substitute our judgment for that of the agency. Where the agency’s decision is not as precise as it may be, we are obliged to uphold the decision “if the agency’s path may reasonably be discerned.” Motor Vehicle Mfrs. Assn., 463 U.S. at 43, 103 S.Ct. at 2867. The majority argues that the record reveals the EPA has not consistently applied the same theory as to what it believes to be the proper boundaries of a nonattainment area. However, the EPA’s path may reasonably and very easily be discerned in this case as a review of the administrative record reveals that since the attainment/nonattainment designation was introduced in 1978, the EPA considered the entire urban area, including those areas that are sources of the ozone in the urban areas, to be one zone for purposes of establishing that area’s attainment/nonattainment status. Thus, if we are to follow the proper standard of review in assessing the decision of a federal agency, I am unable to agree with the majority’s limited remand to clarify and further explain the theory the EPA followed in assessing the proper boundaries of the non-attainment areas. I respectfully dissent. . In 1979, the EPA revised the federal chemical oxidant NAAQS and relaxed the standard from 0.08 part per million ("ppm") to 0.12 ppm and changed the chemical designation of the standard from photochemical oxidants to ozone. 40 C.F.R. § 50.9 (1984). . Presently, the guidelines indicate that the status of whether an area is considered attainment or nonattainment is determined by monitors located within the designated nonattainment area. See Guidelines for the Interpretation of Ozone Air Quality Standards (EPA 450/4-79003). . VOC or hydrocarbon precursors are those emissions from smokestack industries and automobiles that when mixed with oxygen and sunlight under the right meteorological conditions help to create ozone. State of Texas, 499 F.2d at 293 n. 1. . It should be noted that we have no knowledge to date of the EPA approving single nonattainment areas across state boundary lines. . As noted by Mr. Hawkins, "[P]riority should be given to those 105 urban areas with populations greater than 200,000.” . See Hawkins Memo, supra, noting that the approved designation zone for rural areas could be based upon county boundaries. . See abo Memo from David Hawkins, Assistant Administrator for Air and Waste Management, January 3, 1978 (Appellee’s Appendix at A-39) ("Priority should be given to those 105 urban areas with populations greater than 200,000. These areas are to be considered nonattainment for oxidants unless monitored data supports attainment ... the Regional Office should require that the designated area be of sufficient size to include most of the significant hydrocarbon sources.”) (oxidant is a technical term for ozone); Memo from Helms, Chief Control Programs Operations Branch, March 5, 1984 (“In general, nonattainment areas should be large enough to include both the areas where the monitored violations occur and the areas where the sources causing these violations are located. The urbanized area should be the minimum size for ozone____ As you know, this reflects EPA’s policy since the first Section 107 designations were made on March 3, 1978 (43 F.R. 8962-9059)”). . See Chart of Populations of Urbanized Areas: 1970 and 1960 (Appellee’s Appendix at A-485) (listing the populations of Will and McHenry Counties as less than 200,000 people). . Memo from David Hawkins, Assistant Administrator for Air and Waste Management, January 3, 1978 (Appellee’s Appendix at 39) (Noting that for those areas whose population does not exceed 200,000 the "county should be designated as a minimum [for purposes for designating a nonattainment zone] unless the county is exceptionally large and the extent of the violations is minimal.’’) Letter from Darryl Tyler, Director Control Programs Development Division, March 2, 1984, (Noting that for ozone the area of nonattainment must include the urbanized area "as defined by the U.S. Bureau of Census" and other fringe areas with significant volatile organic compound sources). In its brief, the EPA admits that if anything it may have made a mistake in redesignating Will County because the businesses within that county do contain a large number of stationary VOC sources. The EPA notes, however, that in redes-ignating Will County it acted in a consistent manner with its policy that those areas not considered to be part of the urban area could have the attainment/nonattainment boundaries defined by their county borders. Moreover, the EPA believed that it had the authority to redes-ignate Will County as nonattainment if Illinois failed to promulgate and enforce the VOC controls. See 43 Fed.Reg. 40412. However, our court has since held that once an area is redesig-nated, the EPA may not unilaterally change the designation. Bethlehem Steel Corp. v. EPA, 723 F.2d 1303 (7th Cir.1983). Finally, the sources of VOCs in Will County are stationary and thus easier to control through implementation of various SIP and RACT programs. However, because of the large population located in Du Page and Kane Counties, a large source of VOCs is vehicular traffic, which makes it more difficult to control the source problem.

Wisconsin Electric Power Co. v. Costle

ESCHBACH, Circuit Judge. We have consolidated these appeals to review two decisions of the Environmental Protection Agency (“EPA”). In No. 80-2734 we review the EPA’s rule designating portions of the city of Milwaukee, Wisconsin as a nonattainment area for the pollutant sulfur dioxide (“SO2”). In No. 82-1724 we review the EPA’s decision to deny Wisconsin Electric Power Company’s (“WEP-CO”) request for a rulemaking to redesignate the Milwaukee area as attainment. Finding the EPA’s actions to be consistent with the Clean Air Act and the Administrative Procedure Act (“APA”), we decline to disturb the decisions under review. I. BACKGROUND Pursuant to the provisions of the Clean Air Act, the Administrator of EPA establishes national ambient air quality standards for pollutants such as SO2. See 42 U.S.C. § 7409. Each state is initially responsible for classifying its geographical areas as satisfying the national ambient air quality standards (“attainment”) or not satisfying the standards (“nonattainment”). See id § 7407(d)(1). The EPA’s Administrator may accept or modify the classifications submitted by a state. See id § 7407(d)(2). If the need arises, the EPA or a state may institute proceedings to revise a classification list. See id §§ 7407(d)(2), 7407(d)(5). In 1978, the EPA approved the Wisconsin Department of Natural Resources’ (“Wisconsin DNR”) classification of Milwaukee County as attainment for SO2. On May 3, 1979, however, the Wisconsin DNR recommended redesignating portions of Milwaukee as nonattainment. This recommendation was accompanied by a technical document describing monitored violations of the primary standard for SO2 that occurred in 1978. Based on the Wisconsin DNR’s submission, the EPA began a rule-making procedure designed to change Milwaukee’s classification. WEPCO objected to the change but on October 5, 1980, the EPA’s Administrator signed the final rule designating portions of Milwaukee as nonattainment areas for SO2. See 45 Fed.Reg. 67348 (1980). WEPCO subsequently filed in this Court a timely petition seeking judicial review of the EPA’s rule. While the petition for review was pending in this Court, WEPCO asked the EPA to reconsider its rule and redesignate Milwaukee as an attainment area. WEPCO’s request to the EPA was purportedly made pursuant to 42 U.S.C. § 7607(d)(7)(B), which defines the procedural rights of a party seeking reconsideration of certain EPA rules. That section, however, does not apply with respect to rules designating an area as attainment or nonattainment. The EPA therefore properly construed WEP-CO’s request as a petition made pursuant to § 4(d) of the APA which states that each “agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.” 5 U.S.C. § 553(e). Our review of the EPA’s rule classifying Milwaukee as a nonattainment area was postponed, by agreement of the parties, until the EPA acted on WEPCO’s petition to repeal the rule and to promulgate a new rule designating the area as attainment. On April 5, 1982, the EPA’s Administrator signed the order denying WEPCO’s petition to redesignate the Milwaukee area. The EPA’s decision not to institute a rulemaking designed to redesignate Milwaukee as an attainment area was based on data submitted by the Wisconsin DNR. The Wisconsin DNR had performed a modeling analysis of the air quality in the Milwaukee area. This analysis incorporated power plant characteristics and emissions data provided by WEPCO, utilized an EPA-approved model, and complied with applicable EPA guidelines. Because the modeling analysis predicted numerous violations of the primary ambient air quality standard for SO2, the EPA decided to abide by its 1980 rulemaking and retain Milwaukee’s classification as a nonattainment area. See 47 Fed.Reg. 15813 (1982). WEPCO petitioned for judicial review of this decision and, for the purpose of rendering decisions, the petition was consolidated with the petition seeking review of the 1980 rule designating Milwaukee a nonattainment area for SO2. This procedural history reveals that although these review petitions are connected by a single problem — S02 pollution in Milwaukee — there are two distinct administrative decisions under review. Our review of the decisions is governed by the judicial review section of the APA, see 5 U.S.C. § 706. In each appeal, therefore, we can disturb the EPA’s decision only if the agency acted beyond the scope of its statutory authority, or in an arbitrary or capricious manner, or in violation of WEPCO’s procedural rights. See id.; Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-17, 91 S.Ct. 814, 823-824, 28 L.Ed.2d 136 (1971). Moreover, we are guided by our decision in U.S. Steel Corp. v. EPA, 605 F.2d 283 (7th Cir.1979), cert, denied, 444 U.S. 1035, 100 S.Ct. 710, 62 L.Ed.2d 672 (1980), that EPA rulemakings will be disturbed on procedural grounds only in rare circumstances. See id. 605 F.2d at 290-91. II. THE NONATTAINMENT DESIGNATION (No. 80-2734) Because WEPCO tends to merge the two EPA decisions under review, it is difficult to identify WEPCO’s specific objections to the 1980 rulemaking which classified portions of Milwaukee as nonattainment. We have, however, discerned two objections to the rule. First, WEPCO contends that the EPA illegally relied on monitored SO2-concentration data reported by “running averages” as opposed to “block averages.” WEPCO’s second argument, which takes various forms, is that monitored air quality data made available to the EPA since the rule was promulgated undermine the validity of the nonattainment designation. We hold that both objections are without merit. The ambient air quality standard applicable in this case is written in terms of maximum average SO2 concentrations for 24-hour periods. Monitors that measure SO2 concentrations operate continuously. Therefore, average concentrations may be reported for a 24-hour period starting at midnight — “block average” — or any 24-hour period commencing at any time during the day — “running average.” The running-averages method is, of course, more likely to detect violations of the air quality standard. Relying on the decision in PPG Industries, Inc. v. Costle, 659 F.2d 1239 (D.C.Cir. 1981), WEPCO contends that the EPA was required to use block averages, not running averages, in deciding whether there had been monitored violations of the SO2 ambient air quality standard. The EPA, however, found that “under either averaging procedure ... the annual 1978 SO2 monitoring data indicate that there are 2 or more exceedances of the 24 hour S02” air quality standard. See 45 Fed.Reg. 67348 (1980). WEPCO does not now challenge this finding; therefore, even if the EPA were precluded from using running averages, the rule under review in this case is supported by data reported using concededly-legitimate block averages. In any event, WEPCO attaches too much significance to the decision in PPG Industries. The court in that case did not hold that the EPA is precluded from using running averages. On the contrary, the court indicated that the EPA could, consistent with the Clean Air Act, rely on running averages. See 659 F.2d at 1248-49. Because of inadequate notice, however, the court in PPG Industries remanded the case to the EPA to allow for comments on a proposed rule requiring monitored data to be reported in running averages. See id. at 1250-51. There is no procedural infirmity in this case requiring remand; WEPCO was aware of the use of running averages, commented on this reporting method, and the EPA expressed its rational view that running averages should be used “because people breath in SO2 from the ambient air on a continuous basis rather than in midnight ‘blocks’.” 45 Fed.Reg. 67348 (1980). The EPA’s reliance on data reported in running averages, therefore, provides no basis for disturbing the rule designating portions of Milwaukee as a nonattainment area. WEPCO’s other attack on the nonattainment designation is that data made available to the EPA since the promulgation of the rule render the rulemaking itself arbitrary or capricious. As noted above, Milwaukee’s nonattainment designation was founded on monitored violations of the S02 air quality standard. The violations were measured by the Wisconsin DNR’s monitors in 1978 but the nonattainment designation was not finalized by the EPA’s Administrator until October 5, 1980. In response to WEPCO’s comments, the EPA explained that the period of no monitored violation did not preclude a nonattainment designation because the EPA generally requires eight quarters without a monitored violation before designating an area as attainment. It is WEPCO’s position before this Court that eight quarters have now passed without a monitored violation and, therefore, the rule classifying Milwaukee as a nonattainment area must be set aside. We disagree. WEPCO’s briefs in this Court evince a familiarity with the administrative law principle that an agency may not offer to a reviewing court post hoc bases for a prior decision; the decision must stand or fall based on the record before the agency when the decision was announced, see Columbus and Ohio Southern Electric Co. v. Costle, 638 F.2d 910, 912 (6th Cir. 1980). What WEPCO fails to recognize, however, is that the rules of administrative law apply across the board, to agencies and interested parties alike. We agree with the Ninth Circuit that it is not appropriate “for either party to use post-decision information as a new rationalization either for sustaining or attacking the Agency’s decision.” Association of Pacific Fisheries v. EPA, 615 F.2d 794, 811-12 (9th Cir.1980) (emphasis added). Three reasons support this conclusion. First, post-decision information “reaches a reviewing court untested by any procedures ... designed to assure its accuracy and completeness.” National Association of Demolition Contractors, Inc. v. Costle, 565 F.2d 748, 752 (D.C.Cir.1977) (quoting Amoco Oil Co. v. EPA, 501 F.2d 722, 729 n. 10 (D.C.Cir.1974)). Although the monitored data reported after the nonattainment decision was issued may be accurate in some sense, it also may be incomplete (e.g., the monitors may not present a total picture of Milwaukee’s air quality). Second, because the world’s phenomena and our understanding of those phenomena are always changing, an administrative rule could always be subject to post hoc attacks. Such a besieged rule would never be “final” and the benefits of a stable, consistent administrative policy would be dissipated. Third, when we review a rulemaking our task is to ensure that the agency “articulated a rational connection between the facts found and the choice made.” Baltimore Gas and Electric Co. v. Natural Resources Defense Council, Inc., 103 U.S.-,-, 103 S.Ct. 2246, 2257, 76 L.Ed.2d 437 (1983). We do not decide whether in light of the problem addressed, the rule is wise and continues to be wise. In sum, the monitored data made available to the EPA after the nonattainment designation was issued do not undermine the rule, which was rational in light of the record before the agency during the rulemaking. The proper use of the post-decision data was to petition the EPA, as WEPCO did, for a change in the rule designating Milwaukee a nonattainment area. See K. Davis, Administrative Law Treatise 111 (Supp.1982). It may be WEPCO’s position that if a complete and fresh record had been before the EPA at the time of the final rulemaking (Oct. 5, 1980), the EPA would not have designated Milwaukee a nonattainment area. This is so because for the period ending October 1, 1980, there had been no monitored violation of the S02 air quality standard for eight quarters and, with eight “clean” quarters, the EPA generally classifies an area as attainment. The failure to have a complete record at the time of the designation, WEPCO concludes, requires setting the rule aside. We cannot agree that the EPA’s rule was based on such a stale record as to render the rule arbitrary or capricious. As the Supreme Court stated in ICC v. Jersey City, 322 U.S. 503, 64 S.Ct. 1129, 88 L.Ed. 1420 (1944), “[a]dministrative consideration of evidence . .. always creates a gap between the time the record is closed and the time the administrative decision is promulgated. This is especially true if the issues are difficult, the evidence intricate, and the consideration of the case deliberate and careful.” Id. at 514, 64 S.Ct. at 1134; see Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 554-55, 98 S.Ct. 1197, 1217, 55 L.Ed.2d 460 (1978). Even if monitored air quality data could be collected, compiled, validated, and transmitted instantly to the EPA in a rule-making proceeding, the record must be closed at some point to allow for public comment and careful deliberation. The time period between closing the record and issuing a decision is lengthened, of course, because the processes of validation and the like cannot be completed in an instant. We will not set aside the EPA’s nonattainment designation, therefore, because the EPA did not possess on October 5, 1980, measurements made by Wisconsin DNR’s monitors five days previously. III. THE PETITION TO CHANGE THE NONATTAINMENT DESIGNATION (No. 82-1724) After the EPA announced the final rule designating parts of Milwaukee a nonattainment area, WEPCO petitioned the agency to change the classification. WEP-CO’s petition, alternatively labeled one for reconsideration or redesignation, actually was a petition under 5 U.S.C. § 553(e) for the EPA to institute a rulemaking, governed by the APA’s notice and comment provisions, designed to repeal the nonattainment designation and redesignate Milwaukee as attainment. Before the EPA acted on WEPCO’s petition, the Wisconsin DNR performed a “RAM-urban modeling analysis” of the air quality in the Milwaukee region. RAM is a dispersion model that predicts the concentration of SO2 in the ambient air by taking into account such factors as power plant characteristics, surrounding terrain, and meteorlogical conditions. The RAM study performed in this case predicted numerous violations of the primary air quality standard for SO2. Based on this modeling data, therefore, the EPA denied WEPCO’s petition to begin a rulemaking to reclassify the Milwaukee area. It has not always been clear that an agency decision denying a petition to institute a rulemaking is reviewable under the APA. Nevertheless, we are persuaded, based on the scholarly opinion in WWHT, Inc. v. FCC, 656 F.2d 807 (D.C.Cir.1981), that the EPA’s decision denying WEPCO’s petition is reviewable under the standards set forth in the APA section on judicial review, 5 U.S.C. § 706. Our review is guided, however, by the proposition that “only in the rarest and most compelling circumstances” will this Court act “to overturn an agency judgment not to institute rulemaking.” WWHT, Inc. v. FCC, 656 F.2d 807, 818 (D.C.Cir.1981). A. Procedural Arguments The APA does not detail procedures for petitions made pursuant to § 553(e). Therefore the EPA does not violate the APA by not having detailed procedures governing petitions to begin rulemakings. See Laminators Safety Glass Ass’n v. Consumer Product Safety Commission, 578 F.2d 406, 411 n. 15 (D.C.Cir.1978). Moreover, given the Supreme Court’s admonition that reviewing courts must refrain from creating administrative procedures not required by positive law, Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council; 435 U.S. 519, 548, 98 S.Ct. 1197, 1214, 55 L.Ed.2d 460 (1978), WEPCO faces a formidable task in challenging the EPA’s decision on procedural grounds. Because we must decide whether the EPA acted arbitrarily or capriciously in denying WEPCO’s petition for a rulemaking, perhaps the agency was required to “respond to the petition” and, in denying the request, “set forth its reasons.” Oljato Chapter of the Navajo Tribe v. Train, 515 F.2d 654, 666 (D.C.Cir.1975). This minimal procedural requirement may be implicit in the APA’s structure if our review is to be meaningful. Id. In this case, however, it is undisputed that the EPA expressed its clear rationale of decision (i.e., the RAM analysis predicted- violations). WEPCO would have us create new procedures applicable to an agency’s consideration of a § 553(e) petition to begin a rule-making. WEPCO maintains that before the EPA denied the petition to perform a rulemaking reclassifying Milwaukee, the EPA was required: (1) to give notice that it intended to rely on the Wisconsin DNR modeling analysis, and (2) to make the analysis available for public comment. WEPCO has unwittingly described the notice and comment procedures governing informal rulemakings under the APA, 5 U.S.C. § 553, see Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 393 n. 67 (D.C.Cir. 1973), cert, denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). In effect, therefore, WEPCO is arguing that all petitions for a rulemaking must be granted, at least provisionally, and a rulemaking must be conducted even if ultimately the agency decides not to adopt a new rule. Apart from violating the command of Vermont Yankee, WEPCO’s proposal is fraught with flaws. An agency could be constantly engaged in considering endless § 553(e) petitions, thus depleting resources that could be used to fulfill the agency’s mandate. We will not, therefore, create new procedural requirements but will rather espouse the view that “agencies ‘should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.’” FCC v. Schreiber, 381 U.S. 279, 290, 85 S.Ct. 1459, 1467, 14 L.Ed.2d 383 (1965) (quoting FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 143, 60 S.Ct. 437, 441, 84 L.Ed. 656 (1940)). In any event, there was substantial, if not total, compliance with WEPCO’s view of the proper procedure. We find incredible WEPCO’s assertion that it was unaware that the EPA might rely on Wisconsin DNR’s modeling analysis in deciding to retain Milwaukee’s nonattainment designation. On March 11, 1981, the Wisconsin DNR sent the EPA a letter (also mailed to WEPCO) stating Wisconsin DNR’s objection to WEPCO’s request for redesignation. This letter noted that no monitored violation of the SO2 air quality standard had been detected in the last two years but stated that the accuracy and completeness of the monitored data “cannot be fully evaluated without a rigorous air quality modeling analysis.” On July 27, 1981, the Wisconsin DNR sent the EPA another letter stating that in connection with WEPCO’s request for redesignation, Wisconsin DNR was performing a RAM modeling analysis of SO2 concentrations. The EPA replied by a letter, also transmitted to WEPCO, which stated that “action on [WEPCO’s] redesignation request will be deferred until we have receoved your SO2 attainment analysis.” The EPA response was consistent with and even mandated by 42 U.S.C. § 7407(d)(2), which provides that the states must be given an opportunity to demonstrate why a redesignation is inappropriate. The record is replete with other documents demonstrating that WEPCO was aware that the EPA was waiting on the RAM modeling analysis before acting on WEP-CO’s petition. Indeed, during this “waiting period,” the Wisconsin DNR sent WEPCO letters detailing the RAM model, the data used in the analysis, and the preliminary results of the modeling. WEPCO was thus able to comment on why the EPA should not have relied on the modeling analysis when responding to WEPCO’s petition. From the briefs in this Court, WEPCO appears to object to the use of the RAM model in general, not to the model’s results in particular. WEPCO was free to cite its objections to the EPA and to argue that the monitored data, not the modeled data, should be used in classifying the Milwaukee area. To the extent that WEPCO takes issue with particular aspects of the modeling analysis that were not known (or knowable) to WEPCO before the EPA’s decision, we perceive no reason why WEPCO cannot file another § 553(e) petition for a rulemaking to reclassify the Milwaukee area. B. Substantive Arguments The Clean Air Act explicitly authorizes the EPA to classify an area as nonattainment based on “monitored data” or “air quality modeling.” 42 U.S.C. § 7501(2). The EPA’s choice to rely on an air quality model is a policy judgment deserving great deference. See Batavia v. FERC, 672 F.2d 64, 82 (D.C.Cir.1982); see also Baltimore Gas and Electric Co. v. Natural Resources Defense Council, Inc.,-U.S.-,-, 103 S.Ct. 2246, 2255-2256, 76 L.Ed.2d 437 (1983) (reviewing court must be at its most deferential when reviewing predictions made by an expert agency). Moreover, the model used in this case, a multi-source model for S02 is an EPA-approved model that has been upheld by the Sixth Circuit as a legitimate tool for making attainment/nonattainment determinations. See Cleveland Electric Illuminating Co. v. EPA, 572 F.2d 1150, 1164 (6th Cir.1978), cert, denied, 439 U.S. 910, 99 S.Ct. 278, 58 L.Ed.2d 255 (1978). In the face of these circumstances WEPCO does not contend that reliance on a RAM model is itself arbitrary or capricious. Rather it is WEPCO’s view that in the context of this case, the EPA was required to eschew modeled results and re-designate Milwaukee as an attainment area for SO2. WEPCO directs our attention to a statement made in 1978 by an EPA official that “[i]f there is a conflict between adequate monitoring data and modeling results, monitored values should be used.” WEPCO also points to a 1979 memorandum written by the EPA’s Director of Control Programs Development that states: “Generally, eight quarters of ambient air quality data are required showing no violation before an attainment designation can be approved.” Based on these documents and the fact that for two years there had been no monitored violation of the SO2 standard, WEPCO contends that the EPA acted arbitrarily and capriciously in not redesignating Milwaukee an attainment area. A review of the EPA’s documents, however, reveals that WEPCO has overstated. its case and mischaracterized EPA policy. Under EPA guidelines there is no requirement that an area be designated attainment after eight quarters of no monitored violations. The memorandum on which WEPCO relies in arguing that there is such a requirement states that the “eight quarters” policy “is merely a simple extension of current Agency policy concerning the selection of control strategy design values where recent air quality shows improvement over previous concentrations and real, not paper, emission reductions have occurred in the nonattainment area.” (Emphasis added). By “real” reductions the memorandum is referring to emission reductions that are the “result of legally enforceable actions.” Because there have been no enforceable emission limits applicable to S02 sources in the Milwaukee area, the EPA, consistent with its guidelines, chose not to redesignate the area based on monitored data. Moreover, we agree with the Sixth Circuit that the EPA “is not required ... by its own policies to prefer monitoring to modeling in making attainment status designations.” PPG Industries, Inc. v. Costle, 630 F.2d 462, 467 (6th Cir.1980) (footnote omitted). One EPA document provides that states should use “either modeling or monitoring” data in considering whether to redesignate an area. See Procedures for Handling Future Section 107 Redesignations (Oct. 10, 1978). Another EPA document states that modeling “will be extremely supportive” of a nonattainment designation for SO2. See State Guidance Geographic Designation of Attainment Status (1977). And, in designating a portion of Ohio nonattainment, the EPA noted that the “Agency has determined that where air quality modeling results are available, such results will be used to determine the designation, taking precedence over air quality monitoring data which is usually not sufficiently comprehensive to cover any given area.” 43 Fed.Reg. 45998 (1978). Finally, the EPA’s decision in this case is consistent with the statement made by the EPA official in 1978: “[i]f there is a conflict between adequate monitoring data and modeling results, monitored values should be used.” According to this statement, monitored data are to be preferred only if two conditions are met — the monitored data are adequate and the data conflict with modeled results. The EPA’s decision reveals that neither condition was satisfied. In denying WEPCO’s petition, the EPA noted that there was reason to believe that the monitored data was inadequate because the Wisconsin DNR’s model demonstrated that the monitors did not accurately reflect air quality near WEPCO’s Valley power plant. 47 Fed.Reg. 15813 (1982). More important, the modeled and monitored data do not conflict. The EPA has interpreted the Clean Air Act as authorizing a nonattainment designation based on predicted (future) violations of air quality standards. This interpretation, which WEPCO does not challenge here, has been upheld as reasonable and valid. See Columbus and Southern Ohio Electric Co. v. Costle, 638 F.2d 910, 912 (6th Cir.1980); PPG Industries, Inc. v. Costle, 630 F.2d 462, 464-65 (6th Cir.1980); see generally 42 U.S.C. § 7407(d)(1)(B). A modeling analysis, such as the one in this case, is the method that the EPA employs to predict violations; monitors, on the other hand, merely record historical concentrations at discrete locations. Furthermore, the RAM model is based on hypothetical facts concerning power plant operations and weather conditions that are legitimate, see Republic Steel Corp. v. Costle, 621 F.2d 797, 805 (6th Cir.1980), yet perhaps different from the historical facts, Cleveland Electric Illuminating Co. v. EPA, 572 F.2d 1150, 1164 (6th Cir.1978), cert, denied, 439 U.S. 910, 99 S.Ct. 278, 58 L.Ed.2d 255 (1978). Because models and monitors describe the world at different times, and perhaps under different circumstances, the modeled and monitored data in this case do not conflict. IV. For the reasons expressed in this opinion, the petitions for review are denied. . The 24-hour air quality standard for SO2 is 365 ug/m3, not to be exceeded more than once a year. 40 C.F.R. § 50.4 (1982). . WEPCO cites Oscar Mayer and Co. v. Costle, 13 E.R.C. 1457 (7th Cir.1979), for the proposition that post-decision monitored data may be used to attack a nonattainment designation. We doubt that Oscar Mayer so held, but in any event, Oscar Mayer was decided by an unpublished order which may “not be cited or used as precedent.” Circuit Rule 35. . The process of repealing a rule is governed by the notice and comment provisions of 5 U.S.C. § 553. See Consumer Energy Council of America v. FERC, 673 F.2d 425, 446 (D.C.Cir. 1982). The EPA, therefore, could not redesignate the Milwaukee area without noticing its intention and allowing interested parties to comment. . This conclusion also addresses WEPCO’s assertion that once monitors were used to support the nonattainment designation, the EPA could not use a model to “discredit” the monitors. Models do not necessarily discredit monitors; the two measuring techniques are used to answer different questions. Moreover, even if the model does indicate that the monitors are not detecting the highest SO2 concentrations in the area, the monitors still detected violations sufficient to justify the original nonattainment classification. At the time of that decision, therefore, there was no need for the EPA to be concerned that the monitors were.not recording the highest SO2 levels.

Sierra Pacific Power Co. v. United States Environmental Protection Agency

BOOCHEVER, Circuit Judge: This case involves the applicability of the anti-pollution requirements of the Clean Air Act, section 111 (42 U.S.C. § 7411), and the regulations promulgated under that section. Sierra Pacific Power Company and Idaho Power Company appeal Environmental Protection Agency (EPA) decisions holding that Unit 2 of their coal-fired power plant must conform to the stringent anti-pollution regulations promulgated by the EPA in 1978. The power companies argue that they had “commenced construction” of Unit 2 prior to September 19, 1978, and are therefore exempt from proposed standards promulgated on that date. The EPA interpreted its regulations to require actual physical construction of or a binding construction contract for Unit 2, independent of Unit 1, prior to the relevant regulatory date, and refused to consider planning and design activity. Because the EPA did not abuse its discretion in so interpreting its regulations, we affirm. FACTS Sierra Pacific Power Company and Idaho Power Company (Sierra Pacific) are jointly constructing a coal-fired electric power plant at North Valmy Station in Humboldt County, Nevada. The plant consists of two boilers (Unit 1 and Unit 2) which are located at the same site and share common equipment. In two separate decisions, the EPA determined that Sierra Pacific had not “commenced construction” on Unit 2 before September 19, 1978, the date the EPA proposed new, more restrictive regulations. The EPA therefore determined that Sierra Pacific would have to meet the more stringent air pollution equipment requirements contained in the proposed regulations. Unit 1 is exempt from the 1978 regulations because construction of that unit was commenced prior to September 19,1978. Sierra Pacific has appealed the Unit 2 EPA determinations directly to this court pursuant to 42 U.S.C. § 7607(b)(1). A. Statutory and Regulation Background In 1970, Congress extensively amended the Clean Air Act of 1955, for the first time enacting a comprehensive program to combat air pollution at both the state and federal level. Pub.L.No. 91-604, 84 Stat. 1676 (1970). Section 111 of the Act authorized the EPA to issue regulations for new stationary sources of air pollution, which would include such facilities as power plants. In 1971, the EPA issued “new source performance standards” for coal-fired power plants such as Sierra Pacific’s, requiring the use of either a high-grade (low sulfur) type of coal, or the installation of flue gas desulfurization equipment, commonly called “scrubbers.” 36 Fed.Reg. 24876 (Dec. 23, 1971). Both units of Sierra Pacific’s proposed plant were originally designed to meet these requirements by burning high-grade coal, and did not contemplate scrubbers. In 1977, Congress amended section 111 of the Clean Air Act and directed the EPA to issue regulations requiring new pollution sources to use the best adequately demonstrated technology available. Pub.L.No. 95-95 § 109, 91 Stat. 685 (1977). See H.R. Rep.No. 1175, 94th Cong., 2d Sess. 156-59 (1976). Section 111 now provides in part that “[a]ny new or modified fossil fuel fired stationary source which commences construction prior to the date of publication of the proposed revised standards shall not be required to comply with such revised standards.” 42 U.S.C. § 7411(b)(6) (emphasis added). On September 19, 1978, the EPA published the proposed revised standards, which, in effect, required scrubbers on all coal-fired power plants above a certain size. 43 Fed.Reg. 42154 et seq. (1978); 40 C.F.R. § 60.40a (1980). Because Sierra Pacific had entered into a binding construction contract for Unit 1 prior to September 19, 1978, this unit is exempt from the new regulations. The issue in this case is whether Sierra Pacific “commenced construction” on Unit 2 prior to September 19, 1978. If not, the company will be forced to install a scrubber on Unit 2. B. History of Sierra Pacific’s Construction Sierra Pacific initially began planning the North Valmy power plant in .1974. There is no dispute that the company planned to build both units from the very beginning. In 1975 its Board of Directors authorized construction of both units. On February 17, 1976, Sierra Pacific contracted with Babcock and Wilcox to purchase and construct the boiler for Unit 1. Sierra Pacific had an option for the purchase and construction of the Unit 2 boiler which it never exercised. Also in 1976, Sierra. Pacific prepared an environmental report which it filed with the State of Nevada. The company received certification from Nevada for the entire project in several stages in late 1976 and 1977. On December 19, 1977, it received a permit for physical, on-site construction of Unit 1 and some common facilities for both units from the Nevada Public Service Commission. Nevada Utility Environmental Protection Act, Nev.Rev.Stat. § 704.865. The state advised Sierra Pacific that it should apply for the Unit 2 permit after determination of the role Unit 2 was to play in the company’s overall load and supply program. On April 4, 1978, the EPA issued a “prevention of significant deterioration” permit for the entire project as it was then planned, which did not include scrubbers. Issuance of such a permit merely indicates that the EPA believes the plant will not result in significant deterioration of the ambient air quality; the permit does not excuse compliance with the new source pollution standards of 40 C.F.R. Part 60. On September 12, 1978, Sierra Pacific appeared before the Nevada State Environmental Commission requesting a one-year extension on the expiration date for its Unit 2 construction certificate. A company representative, Mr. Saibini, told the Commission that “only preliminary design work has been done on the [Unit 2] boiler” because the company had been unable to enter into a binding contractual commitment. The request for an extension was granted, and the Unit 2 permit was finally issued on March 26,1979. Therefore, on September 18,1978, the last day to “commence construction,” the company had an on-site construction permit for Unit 1, but by its own statements was not ready to complete its application for a permit or begin actual construction on Unit 2. On April 11, 1979, Sierra Pacific contracted with the Foster Wheeler Company for the purchase of the Unit 2 boiler. The company notified Region IX of the EPA that actual construction commenced on Unit 1 and some of the common facilities on September 11, 1978. At this time, then, approximately a week before the EPA proposed its new regulations, the company had received all necessary state air quality permits and its federal prevention of significant deterioration permit, and had begun design and engineering work for both units. Significantly though, the company had not yet entered into a boiler contract, received on-site construction permits, or begun actual construction on Unit 2. The company was aware that Unit 2 might be governed by the 1978 regulations, and therefore requested an EPA determination on the matter. C. EPA Proceedings On April 4, 1979, in response to Sierra Pacific’s request, the Nevada regional office of the EPA informed the company that Unit 2 was covered by the new regulations because the company had not entered into either a binding construction contract or a continuous program of construction. The company appealed this decision to EPA headquarters in Washington. Pending a final determination, Sierra Pacific officials met with the EPA and submitted cost information indicating its losses if the new source performance standards compliance was required. It hoped that this information would show a continuous program of construction. Sierra Pacific’s “lost investments” included: (1) design and engineering costs, (2) capital costs, (3) premium coal contracts, (4) environmental studies, and (5) costs incurred by delayed construction. These costs allegedly totaled over $35 million. On August 24, 1979, the EPA issued a “final determination” requiring Sierra Pacific to comply with the 1978 regulations for Unit 2. This determination carefully analyzed each of the company’s claimed expenses and found that most of the costs were merely costs of compliance, and were not increased by any forced changes in its existing construction plans. In addition, the EPA found that some of the increased expense was de minimis in relation to the overall project cost. Due to confusion over the appropriate jurisdictional forum, Sierra Pacific challenged this determination in both the federal district and circuit courts. On May 23, 1980, before any substantive action in either federal court, the EPA issued a revised determination which revoked and replaced the 1979 determination. Based on different grounds, the new determination reached the same result, namely that Sierra Pacific must comply with the new regulations for Unit 2. In the later opinion the EPA rejected use of the “lost investments” test. It stated that none of the lost investments were directly related to the “fabrication, erection, or installation” of the boiler for Unit 2, and therefore the investments were inappropriately considered in the first EPA determination. 40 C.F.R. § 60.2(g). The EPA interpreted its regulations to require either a contract or actual construction on the boiler unit itself, and therefore Sierra Pacific had not “commenced construction.” Sierra Pacific has appealed the 1979 and the 1980 determinations directly to this court. Both appeals have been consolidated, and the parties have jointly agreed to dismiss the district court suit. The sole issue is whether the EPA abused its discretion in determining that Sierra Pacific had not commenced construction of Unit 2 prior to September 19, 1978. I. STANDARD OF REVIEW Sierra Pacific has not challenged the validity of the EPA regulations, and if they had we would be without jurisdiction to hear such a claim. 42 U.S.C. § 7607(b)(1). The question, then, is whether the EPA properly interpreted its regulations. Section 307 of the Clean Air Act sets forth the standard for review. We may overturn the EPA determination that Unit 2 is subject to the stricter pollution control regulations only if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 42 U.S.C. § 7607(d)(9)(A). See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971); Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654, 667 (D.C.Cir.1975). An appellate court will ordinarily give substantial deference to a contemporaneous agency interpretation of a statute it administers. When dealing with an interpretation of regulations the agency has itself promulgated, “deference is even more clearly in order.” Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). We have held that the EPA’s interpretation of its regulations is entitled to great deference, even where, as here, it has overruled or questioned its own prior interpretations. Montana Power Co. v. E. P. A., 608 F.2d 334, 346-48 (9th Cir. 1979). See Kenai Peninsula Borough v. State of Alaska, 612 F.2d 1210, 1214 n.8 (9th Cir. 1980). Therefore Sierra Pacific must overcome a strong presumption of validity to establish that the EPA incorrectly interpreted its regulations. We are not permitted to “substitute [our] judgment for that of the agency.” Citizens to Preserve Overton Park, 401 U.S. at 416, 91 S.Ct. at 823; Montana Power, 608 F.2d at 344. We are nevertheless mindful of our obligation to make a “searching and careful” inquiry into the facts to determine the reasonableness of the EPA’s interpretation, under the standard of deference discussed above. Citizens to Preserve Overton Park, 401 U.S. at 416, 91 S.Ct. at 823. II. UNIT 2 AS A SEPARATE FACILITY Section 111 of the Clean Air Act Amendments of 1977 exempts new stationary sources that have commenced construction prior to publication of the new proposed regulations, but the statute does not define the term “commenced construction.” See 42 U.S.C. §§ 7411(a), (b)(6). The 1978 regulations define “construction” as: fabrication, erection, or installation of an affected facility. 40 C.F.R. § 60.2(g). With respect to a new source, “commenced” means that an owner or operator has undertaken a continuous program of construction or modification or that an owner or operator has entered into a contractual obligation to undertake and complete, within a reasonable time, a continuous program of construction or modification. 40 C.F.R. § 60.2(i) (emphasis added). Unit 1 of Sierra Pacific’s plant meets the “contractual obligation” test of the regulation, and Sierra Pacific argues that Unit 2 meets the alternative “program of construction” test. The EPA, however, interpreted the word “program” in light of the physical emphasis in the definition of construction, and therefore found that Sierra Pacific had not commenced construction. Initially we note that the EPA may properly analyze the state of construction on just one unit of a two-unit project. The statute and regulations apply to “any building, structure, facility, or installation which emits or may emit any air pollutant.” 42 U.S.C. § 7411(a)(3). The regulations further explain that “facilities” include “[e]ach fossil-fuel-fired steam generating unit,” 40 C.F.R. § 60.40(a)(1) (emphasis added), and define “unit” as a separate “furnace or boiler used in the process of burning fossil fuel ...” 40 C.F.R. § 60.41(a). Therefore the EPA must look to the Unit 2 boiler facility, by itself, in determining whether construction has commenced, and disregard the progress of construction on Unit 1, or on the facilities that will be shared by both units. This principle was made clear by the District of Columbia Circuit in a similar context. In ASARCO Inc. v. E. P. A., 578 F.2d 319 (D.C.Cir.1978), the court evaluated proposed EPA regulations defining a “stationary source” under 42 U.S.C. § 7411 as including, under some circumstances, a combination of facilities. Under this so-called “bubble concept,” an industry would be permitted to balance an increase in pollution from one source with a matching decrease in pollution from another source so long as the “net” pollution level from the “facility” remained the same. The court vacated the regulations and remanded to the EPA because the term “affected facility” is not synonymous with an entire plant. 578 F.2d at 323. The court held that the regulations must result in individual assessment for each energy producing unit. In Alabama Power Co. v. Costle, 636 F.2d 323, 395-98 (D.C.Cir.1979), the District of Columbia Circuit reaffirmed the ASARCO holding that the bubble concept was an improper regulatory application of the new source performance standards. The Alabama Power court held, however, that it was proper for the EPA to look to the entire facility before issuing a prevention of significant deterioration permit, because of the different purposes of these two EPA functions. Id. The Alabama Power court was also faced with a power company challenge to EPA prevention of significant deterioration regulations which in effect required a separate “commenced construction” date for each unit of a multi-boiler power plant. 40 C.F.R. § 52.21(s)(2) (1978); 43 Fed.Reg. 26388, 26396 (1978). Relying on the EPA’s considerable discretion, the court found that the challenged regulatory standards were a reasonable interpretation of the Clean Air Act. 636 F.2d at 409-11. Therefore, the EPA properly looked to the state of construction on Unit 2, independent of Sierra Pacific’s progress on Unit 1. Furthermore, the regulations make it clear that construction is to be interpreted with regard to the “facility” or boiler itself, not the related construction necessary for the entire project. III. COMMENCEMENT OF CONSTRUCTION The EPA’s 1980 determination in the instant case states that a power company can meet the regulatory test determining when construction is “commenced” by showing either: (1) a contractual obligation, or (2) a continuous program of construction. Although the EPA might have adopted the company’s broad reading of the word “program” so as to include planning and design of a unit, failure to do so was not an abuse of discretion. The only court we are aware of that has considered this issue held that the EPA interpretation ignoring planning and preliminary purchases for a unit not yet under physical construction was a “reasonable interpretation.” United States v. City of Painesviile, 431 F.Supp. 496, 500 n.5 (N.D.Ohio 1977), aff’d, 644 F.2d 1186 (6th Cir. 1981). The EPA in the Painesviile case found that construction of a new boiler unit in a plant was only in the planning stages, and it interpreted 40 C.F.R. § 60.2(i) to require either a binding contract or actual construction. The district court, agreeing with the EPA, found that construction “had not progressed to the point that a change in its design would have required the facility already erected to be modified in order to insure that it could comply with the [new standards].” 431 F.Supp. at 501. The court further noted that had Congress intended the EPA to consider planning or design of a project, it would have used those terms instead of the word “construction.” 431 F.Supp. at 501 n.8. The Sixth Circuit agreed that the EPA properly interpreted its own regulations, and affirmed the district court. At 1190. The appellate court also extensively discussed the congressional intent of Section 7411, and found that concern for the environment was a more important consideration than the costs borne by industry. At 1190-1193. Citing only a dictionary as authority, Sierra Pacific contends that “program” of construction necessarily includes planning and design work. “Program” is not defined in the regulations. See 40 C.F.R. § 60.2. It is reasonable, however, for the EPA to interpret “program of construction” in terms of the definition of construction: “fabrication, erection, or installation,” which suggests physical activity. If the EPA adopted the power company’s broad construction of the word “program,” construction would have commenced in 1974 when Sierra Pacific first decided to build the plant. Under this approach, power companies could be building power plants well into the next decade under the technologically outdated 1971 regulations. The EPA approach of looking to physical construction on the boiler itself is not only a reasonable interpretation of the definitions in 40 C.F.R. §§ 60.2(g) and (i), but also provides a more workable test for determining the commencement of construction. Sierra Pacific finally contends that the congressional intent for excusing new sources under construction from the stricter pollution standards was to avoid excessive economic waste from abandonment or alteration of a program of construction. The legislative history of the Clean Air Act of 1970 and of the 1977 amendments, however, does not discuss the purpose of the “commenced construction” language. Although it is reasonable to assume that Congress included this language to prevent economic waste there is nothing to indicate where Congress wanted the line between protection of the environment and costs to the regulated utility to be drawn. The history of the Clean Air Act does indicate how important Congress believed it was to enhance air qualify by strictly regulating all new stationary sources of pollution. For this reason, the 1977 amendments require the use of the best adequately demonstrated technology rather than permit reliance on certain types of fuel such as low sulfur coal. H.R.Rep.No. 294, 95th Cong., 1st Sess. 11, reprinted in [1977] U.S.Code Cong. & Ad.News 1077, 1088. In determining congressional intent the EPA was justified in balancing solicitude for industrial costs with strong statements of environmental concern contained in the Committee Reports. See United States v. City of Painesville, 644 F.2d 1186 at 1191-1193 (6th Cir. 1981). Congress left to the EPA the final determination of which new sources were to be covered by the 1978 regulations, and Sierra Pacific has not shown that the EPA abused its discretion by drawing the line for determining the commencement of construction at the stage of physical “fabrication, erection, or installation” of a boiler unit, or when the power company can show a binding contract for boiler purchase. IV. REJECTION OF THE LOST INVESTMENTS TEST Sierra Pacific’s final contention is that the EPA improperly failed to consider evidence of lost investments. The EPA’s 1979 ruling creates the impression that when the magnitude of lost investments reaches large enough proportions it might justify grandfathering a construction project under the 1971 standards. In its 1980 ruling, the agency stated that the magnitude of lost investments was, by itself, irrelevant. Instead, a permit applicant would be required to show that lost investments fit into two narrow categories: either that money was spent on actual physical construction related to a particular unit, or that money would be lost from a forced breach of a construction contract. In this case it was conceded that there was no contract for the construction of Unit 2. The EPA also determined that all the lost investments claimed by Sierra Pacific related to activities that were connected with other elements of the construction project, or related to planning activities. None related to actual physical construction of Unit 2. Because none of the investments fell into the appropriate categories, the agency concluded that Sierra Pacific’s lost investments claim failed to establish that the company had “commenced construction.” Sierra Pacific has raised the additional problem that the EPA first requested information on lost investments, then applied that test, and later rejected it, after the company initiated federal litigation. The company contends that the EPA could not abandon the lost investments standard having once applied it in the 1979 determination. In Montana Power Co. v. E. P. A., 608 F.2d 334 (9th Cir. 1979), this court upheld the EPA’s use of a “substantial loss” test. The court, however, was only interpreting the “contractual obligation” test of the “commencement” definition. 40 C.F.R. § 52.21(b)(7); Id. at 345. Montana Power found that the EPA did not abuse its discretion by applying a “new and different rationale” to evaluate the progress of construction, even though similarly situated power plant projects were evaluated under a different test. Id. at 348-49. We made it very clear that substantial deference is given to the EPA in interpreting its own regulations. The EPA is not strictly bound by its earlier interpretations, even though they may be “apparently inconsistent,” id. at 346, and the EPA is “free to make reasonable changes” in interpretation. Id. at 348. Therefore, even though Sierra Pacific may have initially been misled by what test the EPA would apply, the EPA did not abuse its discretion in changing its reasoning. It was perhaps unwise for the EPA to issue a second determination with conflicting reasoning, particularly after commencement of federal litigation, but it did not amount to an abuse of discretion. Sierra Pacific suffered no demonstrable harm; the result reached in each case was the same. Therefore, we hold that the 1980 determination effectively “revoked and replaced” the 1979 determination. The rationale utilized in the 1980 determination was a reasonable interpretation of 40 C.F.R. Part 60, and therefore the 1980 determination is AFFIRMED. . Sierra Pacific initiated the power plant project, and Idaho Power did not become involved until early 1978. The companies entered into a formal agreement to share the costs of construction, ownership, and operation of North Valmy Station in December 1978. We have referred to this joint venture as “Sierra Pacific” throughout the opinion. . Section 307(b) of the Clean Air Amendments of 1977, as codified at 42 U.S.C. § 7607(b)(1), provides in part: A petition for review of ... any other final action of the Administrator under this chapter ... [Chapter 85, Air Pollution Prevention and Control, 42 U.S.C. § 7401 et seq.] which is locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit. The Supreme Court recently held that this language broadens the jurisdiction of the Court of Appeals to any final EPA action, not just those specifically enumerated in § 7607(b)(1). Harrison v. PPG Industries, Inc., 446 U.S. 578, 589, 100 S.Ct. 1889, 1896, 64 L.Ed.2d 525 (1980). We note that the District of Columbia Circuit has exclusive jurisdiction to review “any standard of performance or requirement under § 7411 of this title . . and therefore in this circuit Sierra Pacific may only challenge the application and interpretation of the EPA regulations, not their validity. 42 U.S.C. § 7607(b)(1). . Scrubbers are presently the best technological system for removing sulfur dioxide. See H.R.Rep.No. 1175, 94th Cong.2d Sess. 161 (1976). . The statute directed the EPA to promulgate the revised standards by August 7, 1978. 42 U.S.C. § 7411(b)(6). The EPA was unable to meet this deadline, first publishing proposed regulations on September 19, 1978. Although the final regulations were not published until June 11, 1979, 44 Fed.Reg. 33580, the September 19, 1978, date controls for determining when construction commenced. See United States v. City of Painesville, 644 F.2d 1186 at 1190 (6th Cir. 1981). . The permit granted to the power company specifically stated that: This Approval to Construct/Modify a stationary source grants no relief from the responsibility for compliance with any other applicable provision of 40 C.F.R. Parts 52, 60 and 61 or any applicable Federal, State, or local regulations. Prevention of significant deterioration permits are only required in “clean air” areas, where the overall level of pollutants is below national levels set by the EPA. 42 U.S.C. § 7470 et seq.; 40 C.F.R. § 52.21. Sierra Pacific’s plant is being constructed in a clean air area, and the EPA found, by issuing the company a permit, that its plant would not cause significant deterioration of the existing air quality. The new stationary source pollution regulations, on the other hand, are designed to preserve and enhance air quality where possible, and all “new sources” are required to comply with the regulations regardless of the ambient air quality. For a thorough discussion of the provisions and interpretation of the prevention of significant deterioration regulations, see Citizens to Save Spencer County v. E. P. A., 600 F.2d 844 (D.C.Cir.1979). . Sierra Pacific’s alleged losses can be broken down as follows: (a) $852,582 for the preparation of engineering studies, flow diagrams, etc., that cannot be applied to Unit 2 if a scrubber is incorporated; (b) $205,000 in capital expenditures incurred in modifying the coal and ash handling systems and various electrical equipment to accommodate a scrubber; (c) $2,359,-302 expended for premium (low-sulfur) coal contracts, such coal being unnecessary for Unit 2 if equipped with a scrubber; (d) $250,000 for environmental studies that may have to be redone for Unit 2; and (e) $31,500,000 due to increased construction costs and purchase of replacement power during the estimated one year delay caused by compliance with the new regulations. These estimated costs total $35,-166,884. Sierra Pacific asserts these amounts total $34,916,884. The company neglected to include the $250,000 for environmental studies in computing its total. It is apparent that the bulk of the company’s “lost investment” consists of a projected loss due to construction delays in the future. This is obviously not a sunk cost. In both determinations, the EPA suggested that many of these costs were either avoidable (notably the estimated cost of delay), exaggerated, or necessary costs of new source standards compliance regardless of when construction commenced. In its final May 23, 1980, determination, however, the EPA concluded that none of the alleged lost investments constituted “construction” within the regulatory definition. 40 C.F.R. § 60.2(g). Because we find that the EPA reasonably interpreted its regulations by not considering the extent of Sierra Pacific’s asserted costs, we do not need to decide whether any of the costs are legitimate lost investments. . Prior to the Supreme Court decision in Harrison v. PPG Industries, Inc., 446 U.S. 578, 100 S.Ct. 1889, 64 L.Ed.2d 525 (1980) (see note 2 supra), it was unclear whether a challenge to an EPA action such as the one in the instant case should be filed in the federal district or circuit court. PPG Industries, Inc. v. Harrison, 587 F.2d 237, 242-45 (5th Cir. 1979). Therefore Sierra Pacific simultaneously filed a petition for review in the District Court for Nevada (Civ.R. 79-229 BRT) and in this court (No. 79-7542). After the Supreme Court decision, a joint motion to dismiss was granted by the district court. . Because the EPA looks exclusively to construction on the boiler unit itself, it was reasonable to disregard the progress on construction common to both units, such as the coal and ash handling systems, site preparation, access roads and temporary housing for construction workers. . Sierra Pacific contends that United States v. Public Service Co. of Indiana, 12 E.R.C. 1495 (S.D.Ind.1977), took the opposite view from that expressed in Painesviile. In the Public Service case, however, the court did not specifically address the program of construction language. The court recognized that the regulations (40 C.F.R. § 60.2(d), (e), (g) and (i)) define “new source” to be the individual piece of apparatus or boiler facility, but purported to hold these regulations invalid. 12 E.R.C. at 1502. The court tailed to consider whether it had jurisdiction to pass on the validity of the regulations themselves. See 42 U.S.C. § 7607(b). . Senator Muskie expressed the need for new source performance standards as follows: Those areas which have levels of air quality better than the national standards should not find their air quality degraded by the construction of new sources. I Legislative History of the Clean Air Act Amendments of 1970, at 125. With this goal in mind, Congress enacted section 111 of the Clean Air Act, designed to insure that stationary sources would be “equipped, operated, and maintained so as to reduce emissions to a minimum.” II Legislative History, id. at 415-16. In 1977 Congress was compelled to strengthen the new source standards because the existing regulations were inadequate to protect air quality or meet the economic goals of the 1970 legislation. Section 111 of the Act was amended to require the “best technological system of continuous emission reduction which .. . has been adequately demonstrated.” 42 U.S.C. § 7411. To justify this heightened standard, the House Committee Report accompanying the 1976 Bill which in substance became the 1977 Act cites strong support from a number of public and private agencies. As the National Academy of Sciences advised, “even use of best available technology by new sources may not be sufficient to prevent serious ‘irreversible environmental damage’ in the foreseeable future.” H.R.Rep.No. 1175, 94th Cong., 2d Sess. 160-65 (1976). . To support its contention that the EPA abused its discretion, Sierra Pacific alleges that there has been disparate administrative treatment of similarly situated companies. See Hughes Air Corp. v. C. A. B., 482 F.2d 143, 145-46 (9th Cir. 1973). Neither EPA determination Sierra Pacific relies on to show that rejection of the lost investments test was arbitrary is on point. Both cases involved situations where a power company had already entered into a binding contract for construction of a facility. See City of Fayetteville determination (EPA determination of Feb. 13, 1978) and the Cayuga Station determination (EPA determination of June 9, 1978). In the instant case, Sierra Pacific did not have a contract for the Unit 2 boiler. . In Montana Power, the EPA was interpreting the prevention of significant deterioration statute and regulations, not the new source standards at issue in this case. 42 U.S.C. § 7470 et seq. The regulatory definitions of “construction” and “commenced,” however, are identical. See 40 C.F.R. §§ 52.21(b)(7), (8); note 5 supra.

PPG Industries, Inc. v. Costle

JOHN W. PECK, Senior Circuit Judge. Petitioners are four companies with industrial plants in Summit County, Ohio. They challenge the United States Environmental Protection Agency’s designation of part of Summit County as “nonattainment” of the national air-quality standard for the pollutant sulfur dioxide (SO2); by this designation the EPA labeled parts of Summit County, including most notably the City of Akron, as problem areas where special air pollution abatement measures should be undertaken. We find EPA’s designation to be unsupported by the administrative record, and we remand the agency’s rule for further consideration. We do so reluctantly, but with the observation that zeal for cleaning the air does not justify administrative caprice or complacency. I. THE MEANING OF “ATTAINMENT” U.S. EPA promulgated the attainment status designation of Summit County pursuant to the legislative command of the Clean Air Act Amendments of 1977, which provided that (d)(1) For the purpose of transportation control planning, part D of this sub-chapter (relating to nonattainment), part C of this subchapter (relating to prevention of significant deterioration of air quality), and for other purposes, each State, within one hundred and twenty days after August 7,1977, shall submit to the Administrator a list, together with a summary of the available information, identifying those air quality control regions, or portions thereof, established pursuant to this section in such State which on August 7, 1977- (A) do not meet a national primary ambient air quality standard for any air pollutant other than sulfur dioxide or particulate matter; (B) do not meet, or in the judgment of the State may not in the time period required by an applicable implementation plan attain or maintain, any national primary ambient air quality standard for sulfur dioxide or particulate matter; (C) do not meet a national secondary ambient air quality standard; (D) cannot be classified under sub-paragraph (B) or (C) of this paragraph on the basis of available information, for ambient air quality levels for sulfur oxides or particulate matter; or (E) have ambient air quality levels better than any national primary or secondary air quality standard other than for sulfur dioxide or particulate matter, or for which there is not sufficient data to be classified under sub-paragraph (A) or (C) of this paragraph. (2) Not later than sixty days after submittal of the list under paragraph (1) of this subsection the Administrator shall promulgate each such list with such modifications as he deems necessary. Whenever the Administrator proposes to codify a list submitted by a State, he shall notify the State and request all available data relating to such region or portion, and provide such State with an opportunity to demonstrate why any proposed modification is inappropriate. 42 U.S.C.A. § 7407(d)(l)-(2) (Supp. 1979). At first blush this subsection appears to require an assessment of the nation’s air quality as of August 7, 1977. Petitioners conclude from the statute’s reference to this specific date that actual, and not predicted, air quality must be the basis for attainment designations. EPA, however, has interpreted subsection (d)(1)(B), supra, to mean that “projected future violations may provide the basis for a nonattainment designation in currently clean areas.” 43 Fed.Reg. 45998 (1978). Our agreement with this interpretation is implicit in our decision in Republic Steel v. Costle, 621 F.2d 797 (6th Cir. 1980), holding that the EPA’s use of computer modeling in making attainment designations was not in itself arbitrary and capricious. Even computer models of air quality incorporating “worst case” assumptions regarding weather conditions, and assuming full capacity operation of pollution sources, may be used to determine “attainment” as defined by the EPA under its interpretation of the Clean Air Act Amendments. See Republic Steel, supra, at 804-806. We therefore reject petitioners’ argument that EPA violated the Clean Air Act in basing its Summit County S02 designation on “hypothetical future circumstances rather than on actual August 7, 1977 air quality.” II. THE VALIDITY OF EPA’S RELIANCE ON ITS SUMMIT COUNTY AIR-QUALITY MODEL Our broad approval of the use of computer modeling in making attainment status designations does not mean that modeling practices in individual cases need not be supported by the administrative record. While this Court may not second-guess the agency on technical matters, we are required to set aside administrative rules for which the record we review demonstrates a lack of a rational basis. Cincinnati Gas & Electric Co. v. EPA, 578 F.2d 660, 663-64 (6th Cir.), cert. denied, 439 U.S. 1114, 99 S.Ct. 1017, 59 L.Ed.2d 72 (1978); Cleveland Electric Illuminating Co. v. EPA, 572 F.2d 1150, 1161 (6th Cir. 1978), cert. denied, 439 U.S. 910, 99 S.Ct. 278, 58 L.Ed.2d 256 (1979). EPA acknowledges that its initial designation of Summit County as nonattainment was based on modeling which incorporated erroneous data regarding the locations and emissions of the stationary (i.e., non-vehicular) pollution sources in Summit County. See Jt. App. at 535. This modeling had not proven a proper tool for setting emissions limitations in Summit County, and was under voluntary “reanalysis” by the agency. Id. EPA contends that this reanalysis was completed in the period between the agency’s initial promulgation of attainment status designations on March 3, 1978, and the agency’s second promulgation (following comments by interested parties) on October 5, 1978. This assertion by the agency is hard to square with EPA’s response to petitioners’ comments on the initial Summit County SO2 designation: Based upon the modeling analysis performed by EPA in the development of the federally promulgated S02 regulations in Ohio, EPA must reaffirm the nonattainment designations for the primary S02 standard for Columbia, Lorain, Summit, and Trumbull Counties. However, these nonattainment areas have been redefined on a subcounty basis. (Emphasis added.) 43 Fed.Reg. 46000 (1978). EPA’s only reference to flaws in its modeling of .Summit County came in response to comments by petitioners Goodyear and Goodrich: While the Agency has recently remodeled the area in order to correct data base errors, the errors in the data base were not such that a change in attainment status was expected. A new regulation for Summit County will be proposed as rulemaking shortly supported by the remodeling which still shows that the area is not achieving standards and is therefore properly designated nonattainment. 43 Fed.Reg. 46001 (1978). The illogic in these responses is patent. EPA contended that its initial designation of all of Summit County as nonattainment was supported by its first computer modeling attempt; yet the designation was to be changed in a “new rulemaking.” EPA was, in short, only prospectively offering a rationale for its Summit County designation. In rulemaking procedures governed by the Administrative Procedures Act, agencies are required to give reasons for their actions. See 5 U.S.C. § 553(c) (1976). See also Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1030 (D.C. Cir. 1978); Kennecott Copper Corp. v. EPA, 462 F.2d 846, 849 (D.C. Cir. 1972). The promulgation of attainment designations is a procedure subject to the APA. We hold that the administrative record does not support the agency’s Summit County SO2 designation, and therefore we remand to the agency for development of the record. We do not expect that final rules adopted after a “notice and comment” procedure will be supported by a record as complete as that produced by adjudicatory hearings. However, we do not accept EPA’s reliance on a promised basis for its designation-a basis expected to emerge from a future rule-making. “[W]hen there is a contemporaneous explanation for agency decision, the validity of that action must ‘stand or fall on the propriety of that finding, judged, or course, by the appropriate standard of review. If that finding is not sustainable on the administrative record made, then the . . . decision must be vacated and the matter remanded . for further consideration.’ ” Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 549, 98 S.Ct. 1197, 1214, 55 L.Ed.2d 460 (1978) (quoting Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973)). In remanding the Summit County SO2 designation for further development of the record, we are not substituting our judgment in an arcane technical controversy for that of the agency. We are reviewing questions of logic and legal procedure, matters in which courts may reasonably claim some expertise. EPA’s perfunctory treatment of petitioners’ comments has resulted in an administrative record from which it is impossible to determine whether the agency’s Summit County designation was arbitrary and capricious. In reviewing agency action under the “arbitrary and capricious” standard, it is our duty to consider whether administrative action was “based on a consideration of the relevant factors and whether there has been a clear error in judgment.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); accord, Asarco, Inc. v. EPA, 616 F.2d 1153, 1158 (9th Cir. 1980). We are not required to “take the agency’s word that it considered all relevant matters.” Asarco, supra, 616 F.2d at 1160. EPA has given us little more than its word that it has “reanalyzed” the data fed into its computer model; however, EPA has given this word, not in the administrative record, but in conclusory fashion in argument before this Court. EPA is required to give reasoned responses to all significant comments in a rulemaking proceeding. See 5 U.S.C. § 553(c) (1976); Alabama Power Co. v. Costle, 606 F.2d 1068, 1086 (D.C. Cir. 1979); Home Box Office, Inc. v. FCC, 567 F.2d 9, 35-36 (D.C. Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977). This requirement is all the more urgent when an agency has perforce not followed usual “notice and comment” rulemaking procedures, but has promulgated “final” rules without a prior period for taking comments from interested parties. Among the comments presented by petitioners Goodyear and Goodrich after the promulgation of the first Summit County designation was the contention that the agency’s use of modeling should be postponed until after the petitioners had completed their studies of the air-quality model used by EPA. EPA responded thus: Finally, because the designation is supported by the RAM modeling and because there is no immediate prejudice to sources stemming from the designation, it is not reasonable to delay designating Summit County as a nonattainment area until the commenters’ studies have been completed. The Agency has evaluated the studies to date and will publish its preliminary comments in the technical support document accompanying the Summit County regulation which will be proposed as rulemaking shortly. Upon completion of the studies, further analysis of the designation may be made. 43 Fed.Reg. 46001 (1978). EPA adopted the position that its Summit County S02 designation had no deleterious consequences, and therefore the “technical support” for the designation could be furnished in a later rulemaking. It is true that the amended Clean Air Act did not require state licensing of new or modified pollution sources in nonattainment areas until July 1, 1979. 42 U.S.C.A. § 7502 (Supp. 1979). The EPA, however, applied its “emission offsets policy” to major new source construction in nonattainment areas prior to that date. 43 Fed.Reg. 8963 (1978). The agency’s emission Offset Ruling, 41 Fed.Reg. 55524 et seq. (1976), strictly limits construction or modification of pollution sources wherever such actions would cause or aggravate the violation of national air-quality standards. While application of the Offset Ruling to sources in areas labelled nonattainment is not automatic, a nonattainment designation does create a “working presumption” of the Ruling’s applicability. U.S. Steel Corp. v. EPA, 595 F.2d 207, as clarified, 598 F.2d 915, 916 (5th Cir. 1979). The presumption “works” against owners of major pollution sources in nonattainment areas. EPA’s contention that petitioners were not immediately affected by the Summit County nonattainment designation is another attempt by the agency to question the ripeness for review of its § 7407(d) designations. EPA had already conceded the ripeness of its nonattainment designations in Alabama at the time the present case was argued. U.S. Steel, supra, at 595 F.2d 211. We do not see how the issue of the ripeness of EPA’s Ohio designations is distinguishable from the issue conceded by EPA in U.S. Steel. III. MODELING v. MONITORING Petitioners have argued, and may again on remand, that the EPA should base its new Summit County S02 designation on air-quality data produced by the extensive pollution monitoring network in Summit County. Petitioners base this argument on an interpretation of the Clean Air Act which has been outlined above: their contention is that attainment status designations must be based on “actual,” and not predicted air quality. We do not find EPA’s contrary interpretation of the Act to be unreasonable. We noted in Republic Steel, supra, that: Congress has recognized that EPA may employ either monitoring or modeling. In § 171(2) of the Act, a nonattainment area is defined as “an area which is shown by monitored data or which is calculated by air quality modeling . to exceed any national ambient air quality standard.” § 171(2), 42 U.S.C. § 7501(2). Where Congress has itself described two alternative methods for EPA to determine nonattainment, the decision as to which to employ is certainly not initially one for this court. Our review concerns whether there has been a violation of law and if not, whether the EPA decision can appropriately be termed arbitrary and capricious. 621 F.2d at 805. We believe, then, that if a nonattainment designation is based on modeling, EPA need only offer record support of the accuracy of the model used. The agency is not required by the Act, nor by its own policies, to prefer monitoring to modeling in making attainment status designations. We acknowledge that “[theoretically, of course, actual air quality tests would have to be superior to modeling assumptions if there were sufficient monitors to constitute a fair test of the ambient air in a county.” Republic Steel, supra at 805. If, however, EPA based a nonattainment designation on predictions of future violations, as the agency may do under the act (see Part I supra), monitored data which merely show historical attainment of air-quality standards do not undermine the agency’s designation. Once EPA has chosen modeling as a basis for its designation, monitored data are relevant in a challenge to that designation only if (1) the parties proffering the data offer evidence of its reliability, and (2) the data tend to show that the agency’s predictions were unsupportable. If these two tests are met, then at some point-the present record certainly does not indicate at what point -it could be arbitrary and capricious for the agency to rely on air-quality modeling instead of on available monitored data in making an attainment status designation. IV. CONCLUSION We grant the companies’ petitions and remand these causes so that an administrative record supporting an SO2 designation for Summit County may be developed. It may be that the agency’s designation will remain unchanged in light of the agency’s “reanalysis” of its Summit County model; we trust, however, that the agency’s future promulgation will follow the procedures prescribed by law. . The abatement measure most abhorrent to the petitioners is a more onerous permit requirement for the construction or modification of pollution sources in nonattainment areas than in attainment ones. Compare 42 U.S.C.A. § 7503 with id § 7475. . Certain enumerated EPA rulemakings under the Clear Air Act are governed not by the APA, but by the Clean Air Act itself. 42 U.S.C.A. § 7607(d)(1) (Supp. 1979), Attainment status designations are not among those enumerated, see id. § 7607(d)(1)(A-N), and there is no indication that these designations are subsumed by the catchall phrase “such other actions as the Administrator may determine.” See id. § 7607(d)(1)(N). . EPA has had its own difficulty in keeping the record straight. EPA in its brief asserted that the Administrator reaffirmed his initial designation of Summit County following the acceptance of comments from petitioners. Resp. brief at 19. In fact the Administrator amended his initial designation, labelling large parts of Summit County attainment for SO2. Compare 43 Fed.Reg. 9026 (1978) with 43 Fed.Reg. 46015 (1978). . The agency had the statutorily required “good cause” for not following the customary procedure. Republic Steel, supra, at 803. . The agency’s guidelines do prefer use of monitored data in designating urban areas, but only where the monitored data are adequate. See Jt. App. at 58. . Cf. Republic Steel, supra, at 805 (“How many . monitors would be needed for a meaningful sample of the ambient air of a county cannot be deduced from this record.”).

Kennecott Copper Corp. v. Environmental Protection Agency

SETH, Chief Judge. These challenges to the several EPA effluent limitation regulations were combined for this consideration. The cases were held pending the development of supplementary regulations. There follows a consideration of each challenge in a separate section. We have included some record references for the purpose of clarity and further explanation. The many points and issues raised in each case have been considered; however, not all have been discussed in this opinion. Thus only the significant or determinative issues have been written on. Appellate review of the regulations in these several appeals requires a substantial inquiry and probing of the administrative agency’s action in accordance with Citi zens To Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136. In reviewing EPA effluent limitations, we must examine whether the facts underlying EPA action are adequately developed and disclosed. American Petroleum Institute v. EPA, 540 F.2d 1023 (10th Cir.). Otherwise stated, three questions should be addressed (assuming the statute and requisite procedures are satisfied): first, whether the EPA explained the facts and policy concerns relied on in making its decision; second, whether these facts have some basis in the record; and third, whether these facts and policy considerations could lead a reasonable person to the same judgment the Agency reached. Weyerhaeuser Co. v. Costle, 191 U.S.App.D.C. 309, 590 F.2d 1011 (D.C. Cir.). The court’s function includes neither reweighing the available evidence nor substituting its judgment for the Agency’s. BASF Wyandotte Corp. v. Costle, 598 F.2d 637 (1st Cir.). When available technological data and research are unfamiliar or untried, the Agency necessarily enjoys broad discretion. BASF, 598 F.2d at 650. And as we have previously observed in construing the Act, “the guiding star is the intent of Congress to improve and preserve the quality of the Nation’s waters. All issues must be viewed in the light of that intent.” American Petroleum Institute, 540 F.2d at 1028. It is fundamental that an agency explain the facts and policy concerns underlying its decisions and conclusions. Courts “are no longer content with bare administrative ipse dixits based on supposed administrative expertise.” Appalachian Power Co. v. EPA, 477 F.2d 495 (4th Cir.). Such explanations must appear in the record and may not be supplied in the form of after-the-fact rationalizations. National Crushed Stone Ass’n v. EPA, 601 F.2d 111, 118 (4th Cir.). At the same time agencies need not supply comprehensive explanations and record citations for each and every conclusion. Seacoast Anti-Pollution League v. Costle, 597 F.2d 306, 311-12 (1st Cir.). These rules are to ensure satisfaction of due process requirements and meaningful public participation in rulemaking, not to straitjacket agency proceedings. BASF Wyandotte Corp. v. Costle, 598 F.2d 637 (1st Cir.). In addition, “the primary purpose of the explanation requirement . . is to facilitate appellate review of administrative decisions.” Seacoast, 597 F.2d at 312. NO. 78-1608 RANCHERS EXPLORATION AND DEVELOPMENT CORP. Ranchers challenged EPA’s effluent limitations for the uranium, radium, and vanadium mining industry. However, the only regulation that appears to be specifically challenged in Ranchers’ brief is the total radium limitation for mine discharge. There are two major issues raised by Ranchers. First, it contends that EPA has not provided an adequate data base or adequate explication of its reasoning or analysis. The second argument, that EPA lacks authority to promulgate such limitations, has been rendered academic by a recent decision of this court. 43 Fed.Reg. 29776. Ranchers did not participate at the rule-making level, and EPA urges that it should not be allowed to seek court review of its challenges. Ranchers acknowledges that it did not so participate, but argues that it can participate in this appeal. It contends that it can challenge EPA’s action as long as the issue was raised by some party during rule-making. There are authorities which hold that as long as issues are raised by some party at the administrative level, they can be raised by another party on review. Wilson & Co. v. United States, 335 F.2d 788 (7th Cir.); Hennesey v. Securities & Exchange Comm’n, 285 F.2d 511 (3d Cir.). “The reason for the rule that such questions should not be raised initially in the court of review is that the administrative agency ought to have the opportunity to rule on the questions in the first instance.” Wilson, at 794. In the recent case of ASARCO, Inc. v. EPA, 188 U.S.App.D.C. 77, 578 F.2d 319 (D.C.Cir.), the District of Columbia Circuit held that the Sierra Club could participate in proceedings even though it did not participate at the rulemaking level. It said: “The issue raised by Sierra was thus not only raised and considered in the proceedings below; it was a substantial part of the fundamental issue in those proceedings.” It does appear that several challenges to the proposed regulations were raised by different parties during rulemaking, and these challenges did concern adequacy of data sampling and other issues which Ranchers now raises. We will thus consider Ranchers’ arguments. These relate basically to the adequacy of the data base. In any event, it is apparent that development of an adequate data base is not so much an “issue” as it is a requirement that must be met in all instances. 33 U.S.C. § 1314(b). Further, considering the purpose behind the rule that issues must first be raised at the administrative level, it is apparent that EPA was well aware of the problem of developing an adequate data base and so no one was deprived of the opportunity to correct the deficiency during rulemaking. As discussed, Ranchers claims that the data base is inadequate, and as support for this contention it cites the fact that the Interim Final Regulations were suspended for what it asserts was an inadequate data base. However, the fact that the data base for the Interim Regulations was inadequate has little, if anything, to do with adequacy of data base for the Final Regulations. The record made after suspension of regulations is the key to whether the data base was adequate. The record shows that after the suspension of the Interim Final Regulations, further data was gathered by the EPA and its contractors. The EPA had originally contracted with Calspan Corporation to do the monitoring, sampling, and testing, and also to make the studies of the literature relating to the mining and milling industries. It also prepared detailed cost studies for the economic contractor. The American Mining Congress also gathered data on the subject. Drafts of a Development Document were prepared. After the suspension additional data was accumulated. The EPA engaged another contractor, Jacobs Engineering, to make tests and obtain data relating to the mining and milling of uranium. The Jacobs findings were submitted to the EPA and to Calspan. The contractor for the uranium petitioners, Hazen Research, participated in these discussions and review of the Jacobs report which had been generally circulated in the industry. There were further meetings with the American Mining Congress and several uranium companies. The industry views were sought. The Final Regulations were the product of this process. Ranchers did not choose to participate in any of the proceedings. Its objections before us on appeal constitute a statistical exercise without sufficient consideration of the actual circumstances existing where and when the data was originated. The control of Radium 226, according to this record, is obtained by barium chloride coprecipitation to reduce the dissolved radium, and to promote the settling of resultant suspended solids and other suspended solids. The record demonstrates the testing done by Calspan and Jacobs of facilities using barium chloride. Extensive data was so collected and furnished by others, and examined by all concerned. The record makes it abundantly clear that the data base for the Regulations applicable to the uranium mining and milling industries was adequate. It is also apparent from the record that the EPA’s explanation of the course it followed is adequate also. We have elsewhere in this opinion considered the standards which must be followed in that regard. When these standards are here applied, we must reject Ranchers’ objections on this point. In this connection we consider an explanation to include the application of the statistical material in reaching the conclusion. This may or may not be a “calculation” (National Crushed Stone Ass’n v. EPA, 601 F.2d 111 (4th Cir.)), and need not be a separate step by step process. Ranchers urges a variation on the basic argument and on the use of data or performance levels, and this relates to the use of averages or different levels of the technological performance in the industry. The EPA here refers to the “average of the best existing performance.” This court recently held in American Petroleum Institute v. EPA, 540 F.2d 1023 (10th Cir.), that in promulgating 1977 effluent limitations, the EPA can base its regulations on results from plants using the best technology, rather than the average of the industry. Tanners’ Council of America, Inc. v. Train, 540 F.2d 1188 (4th Cir.); American Frozen Food Institute v. Train, 176 U.S.App.D.C. 105, 115, 539 F.2d 107, 117 (D.C.Cir.). Also in Weyerhaeuser Co. v. Costle, 191 U.S.App.D.C. 309, 590 F.2d 1011 (D.C.Cir.), the EPA based its limitations on “pollution control achieved at the ‘average’ of the best mills.” Ranchers maintains that EPA did hot consider the cost and economic impacts of the total radium limitation, as required by 33 U.S.C. § 1314(b)(1)(B). However, Ranchers does not deny that EPA considered fully the economic impact of coprecipitation treatment and total suspended solids in uranium processing, and that because of the nature of the treatment process if these limitations are met, then total radium limitations in processing will also be met. Therefore, the total radium limitations set by EPA will impose no additional costs at all, and EPA has thus met the requirement of consideration of cost. Even if the above explanation by EPA is not valid, case law generally has given EPA wide leeway in its analysis of costs. This court in American Petroleum Institute v. EPA, 540 F.2d 1023 (10th Cir.), found that EPA had complied with the requirement of cost-benefit analysis when capital investment for the industry overall was examined. The First Circuit in BASF Wyan-dotte Corp. v. Costle, 598 F.2d 637 (1st Cir.), characterized the obligation of cost considerations as follows: “The obligation the Act imposes on EPA is only to perform a limited cost-benefit balancing to make sure that costs are not ‘wholly out of proportion’ to the benefits achieved.” The court also noted: “We are not convinced that the duty to ‘include consideration of cost in relation to benefit’ imposed on EPA by this clause of § 1314(b)(1)(B) is significantly different from the duty imposed by the same subsection to ‘take into account’ certain other factors [such as non-water quality impact].” The court went on to state that even though there may be valid criticisms of EPA estimates and even though estimates may be inaccurate, EPA’s duty is to develop no more than a “rough idea” of cost to industry. We must hold that adequate considerations have been given to the cost aspect of the problem. Also we must hold that the Regulations, as they pertain to the subject of Ranchers’ petition, are reasonable under the standard of review to be applied. NOS. 76-1241, 78-1894 HECLA MINING COMPANY In Hecla’s petition for reconsideration filed December 12, 1978, EPA was requested to withdraw the copper and cyanide effluent limitation for froth flotation mills. The cyanide limitations were withdrawn on March 1, 1979 (44 Fed.Reg. 546), but the copper limitations were not. We are thus here concerned with the copper limitations only. (43 Fed.Reg. 29774). Posthearing Data: The contentions of the parties as to the Hecla’s second petition for reconsideration seeking withdrawal of the copper limitations, together with the Werthman and Griffith affidavits seeking to supplement the record, come late as posthearing, postrulemaking, and postappeal explanations of the positions of the respective parties. There are very good and practical reasons why the parties should be limited to the rulemaking proceedings for the development of the issues on the record. See Weyerhaeuser Co. v. Costle, 191 U.S.App.D.C. 309, 590 F.2d 1011 (D.C.Cir.), and American Frozen Food Institute v. Train, 176 U.S.App.D.C. 105, 539 F.2d 107 (D.C.Cir.). Hecla contends that the requirement for comment has been met because during suspension of the Interim Final Regulations in 1976, EPA’s contractor became “aware” of Hecla’s problems with formation of eop-per/cyanide complex. Thus Hecla urges that EPA cannot claim Hecla failed to alert them to the problem. However, no case has been found to support the proposition that “awareness” of a problem by an agency is sufficient to waive the requirement for specific comment by an industry at the rule-making level. A strict construction of the standard of review would probably preclude Hecla’s challenge on the issue of copper-cyanide formation. Indeed, if the problem was not clearly raised at the agency level there would be no record of agency action and no way for the court to review the rulemaking process. As to the posthearing Werthman affidavit submitted by the EPA we have recently noted that in reviewing EPA action under the Clean Water Act, “[a]fter the fact rationalization by counsel in brief and argument does not cure noncompliance by the agency with the stated principles.” American Petroleum Institute v. E. P. A., 540 F.2d 1023, 1029 (10th Cir.). The EPA must make clear its analysis and reasoning at the rulemaking level, and its grounds for action must be clearly disclosed in the record. Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620, 633 (2d Cir.). In short, the EPA should not use facts and information gained after rulemaking on which to support its limitations. However, there is in the record (J.A.II, pp. 1747-48) a letter of October 12, 1976, from Calspan to Hecla relating to the possibility of the formation of the copper-cyanide complex. Hecla sometime later responded (J.A.II, p. 1700), and made further comments on the nontoxic nature of the chemical complex. Thus the beginning, at least, of the discussion of this issue appears in the record. The Werthman affidavit contains new data and an analysis to support the copper limitation and the copper-cyanide complex. It appears to be in part an after-the-fact explanation of agency action; however, we will consider it. Thus Hecla’s arguments on this point were partly considered in the rulemaking period and partly in the posthearing exchanges. We have considered the point or issue in its several aspects, but find nothing in it separately or together with the other points to demonstrate the regulations to be arbitrary and unreasonable. There appears to be a problem but again, if the data and further experience demonstrate that the mill is fundamentally different in this respect, a variance may be applied for. 43 Fed.Reg. 29777, § 440.81. The Mine-Mill Code: Hecla advances as a reason for a late challenge to EPA action on the copper limitations that Hecla was denied an opportunity to comment on EPA’s conclusions because interested parties were not advised as to which plants would be exemplaries in the final Development Document. Indeed, Hecla claims that mills (listed by number) as exemplary are not the mills that EPA now lists in its brief as exemplary. Mines and mills are identified in EPA Development Documents by number at the request of the American Mining Congress. Hecla was provided with a mine-mill code in previous litigation to which Hecla was a party so that it could have identified mills mentioned as exemplary. In addition, there is no evidence that Hecla requested the names of exemplary mills at the rulemaking level, or that EPA would have denied this request. The EPA Mine/Mill Code Index is in a supplement to the Development Document dated December 7, 1976. Thus it appears that the list of nineteen mines and mills (two in Idaho, where Hecla’s mine is located) was available to Hecla and there is no indication that it would not have been furnished if requested (J.A. Ill 2932-33 Attachment). In the Development Document, five mills are listed as exemplary for lead and zinc ores: Nos. 3101, 3102, 3103, 3105, and 3108 (J.A. 560, Dev.Doc. 492). EPA’s brief does indeed state that mills 3105 and 3108 are not exemplary. But the Development Document lists mill 3108 as exemplary for wastewater flow and treatment and effluent characteristics (Dev.Doc. 505-6). In the “Summary of Mine/Mill Operations Employing Exemplary Wastewater Treatment,” Tables VII 56 and 57 summarize mine/mill operations in all metal categories with treatment technology exclusive of zero discharge. Mills 3108 and 3109 are changed in the same table that was admitted later as supplementary evidence because it is printed more clearly than the original table. The mine/mill index was thus available to Hecla for inspection to determine the identity of exemplary facilities. However, it does appear that EPA’s designation of exemplary facilities is inconsistent and somewhat misleading; however, not to a degree to serve as a basis for the position Hecla asserts. Certainly Hecla was skillful enough to cope with such a matter. Denial of Notice: A related question is whether EPA’s inconsistency in listing exemplary mills constitutes a denial of notice and the opportunity to comment. This court very recently stated: “As long as a party to an administrative proceeding is reasonably apprised of the issues in controversy and is not misled, the notice is sufficient.” Savina Home Industries v. Secretary of Labor, 594 F.2d 1358 (10th Cir.). “Agency action should be upheld where the path of administrative proceedings may reasonably be discerned even if the demarcations are of less than ideal clarity.” Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620, 632 (2d Cir.), citing Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). It thus appears that the fact that mills were not listed precisely in the final Development Document did not deprive Hecla of meaningful participation in rulemaking such that remand would be necessary. Indeed, the fact that Hecla made no comment about or request for exemplaries at the rulemaking level renders its argument even less persuasive. The Explanation: As a somewhat separate issue, Hecla contends that the effluent limitations should be remanded for reconsideration because of failure to explain how the limitations were developed and what they were based on. As mentioned, adequate explanation of agency action is indeed necessary to the validity of rulemaking. A review of the record with special attention to the final Development Document discloses an adequate explanation of the basis for the regulations. Obviously there is not a step by step progression within the several documents, but taken together with the related material and tables, we must hold that the explanation is adequate within the applicable standards. As hereinabove mentioned the grounds for the EPA action must be disclosed in the record. Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620 (2d Cir.). A brief reference to the EPA explanation should be made. The Development Document discusses in general the process waste water characteristics (J.A. 294, Dev.Doc. 241), and selection of pollution parameters based on stated factors (J.A. 432, Dev.Doc. 379). The toxic effects of copper are discussed, and it is noted that: “In hard water, the toxicity of copper salts is reduced by the precipitation of copper carbonate or other insoluble compounds.” (J.A. 444, Dev.Doc. 391). Tables VII — 56 and 57 summarize mine/mill operations, and tabulate the effluent concentrations achieved by a number of mills (J.A. 647, Dev.Doc. 579). The' BPCTCA for lead and zinc ores is set out in a somewhat cursory fashion in the Development Document, and Table IX-6, p. 739, sets out the levels of effluent reduction obtainable by application of the tailing pond technology recommended (J.A. 802, Dev.Doc. 736). Chemical Analysis Data for lead/zinc mines and mills 3101, 3104 and 3110 are set out at J.A. Ill 2928. The tables set out parameters, monitoring periods, frequency of observation (usually at least each month), number of observations (from twenty-one to one hundred), and mean standard deviation and range in mg/1. The explanation of basis for copper limitations is adequate and well within prevailing standards. Data was set forth in detail, appropriate technology is noted, and conclusions are derived therefrom. Costs and Subcategorization: The record demonstrates an adequate consideration of costs by EPA. Treatment costs for lead and zinc category mills was considered in the Development Document (J.A. 678, Dev.Doc. 610-14). The twenty-one known major mills were taken into account, and a hypothetical mill was used as the representative. Specific monetary figures were quoted for several categories of both capital investment and operating costs. An “Economic Analysis of Proposed Effluent Guidelines,” dated October 1975 is found at J.A. 980. “Economic Analysis of Effluent Guidelines, The Ore Mining and Dressing Industry,” May 1977 is found at J.A. 989. This analysis is quite detailed and takes into consideration many different factors. Calspan Technical Report: Cost-Data Development and Economic Analysis Supplement B-2, April 18, 1975, is at J.A. Ill 2508. This is also a very detailed analysis, treating such diverse areas as processing systems and taxes and contractor’s fees. In addition, costs for implementation of proposed waste water treatment standards for each type of mining is discussed. Twenty-five pages are devoted to lead/zinc mining and milling (J.A. Ill 2601). Cost considerations were thus more than adequate. We also conclude that there was no failure by EPA to subcategorize. The various elements including, of course, the nature of waste water were considered and evaluated. See Dev.Doc. p. 159. EPA found subcate-gorization of milling unnecessary because: “The only ore concentrations process currently practiced in the lead/zinc industry is froth flotation.” (J.A. 213, Dev.Doc. 160). Characteristics of process waste water from lead and zinc ores were considered (J.A. 294, Dev.Doc. 241). The characteristics of lead and zinc waste were illustrated by data from three mills. We must conclude that the regulations herein challenged by Hecla must be upheld. We find no arbitrary and capricious action by the EPA in the adoption of the regulations. NOS. 75-1878 AND 78 — 1560 KENNECOTT COPPER CORPORATION Petitioner challenges the effluent limitations for the base and precious metals subcategory as they apply to froth flotations mills and mine drainage facilities. Petitioner’s brief raises many issues; the principal contentions, however, are that the limitations are unsupported by the data, that EPA failed to explain how the limitations were developed, and that EPA inadequately considered the limitations costs. (43 Fed. Reg. 29774). We have held today that the limitations for the base and precious metals subcategory are supported by adequate and accurate data in the record. See Gulf & Western portion of this opinion. Recently we also answered another of petitioner’s arguments. In United States v. Earth Sciences, Inc., 599 F.2d 368 (10th Cir.), we upheld EPA’s authority to promulgate limitations regulating mining activities. The record contains EPA explanations for its conclusions. The Development Document fully explains the factors considered and the methodology used in subcategorization. Dev.Doc. 147-77. The choice of subcategorization methodology lies within the Agency’s sound discretion. American Petroleum Institute v. EPA, 540 F.2d 1023 (10th Cir.), and this methodology was unchallenged during rulemaking. There is no mystery, as petitioner complains, concerning the reasons behind EPA’s choice of mines for data gathering. The Development Document explains that EPA sought mines and milling facilities thought to employ exemplary pollution treatment technology: “Based upon information gathered as part of the assembly of a data base, examination of NPDES permits and permit applications, surveys by trade associations, and examination of texts, journals, and the literature available on treatment practices in the industry, selection of mining and milling operations which were thought to embody exemplary treatment practice was made for the purpose of sampling and verification, and to supplement compiled data.” Dev.Doc. 15. The term “exemplary” presents no serious interpretation obstacle as it places all interested persons on notice EPA sought facilities that employed the best pollutant-reduction technology, the most effective methods of “restorpng] and maintainpng] the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a) (1976) (congressional declaration of Act’s goals and policy). This is consistent with holdings in support of EPA’s discretion to use a standard, which averages the results from the best facilities. See, e. g., E. I. duPont de Nemours & Co. v. Train, 430 U.S. 112, 131, n. 21, 97 S.Ct. 965, 51 L.Ed.2d 204; American Petroleum Institute, 540 F.2d at 1034; Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620, 632 (2d Cir.). And it comports with legislative intent. See S.Rep. No. 92-414, at 50 (1971), U.S.Code Cong. & Admin.News 1972, p. 3668. Here EPA selected two of its exemplary mines because pond design maximized the potential for settling of solids by using the full area available for the settling pond. One of these mines constructed a dike in its tailings pond to reduce the impact of wind, and two other mines use multipond systems to enhance the settling process. Kenne-cott’s tailings pond consists of 250 acres on an available area of 2,500 acres. Using the available area to build a larger pond would increase retention time and maximize the potential for settling of solids. These differences in technology implementation will obviously affect the amount of pollutants discharged and the selection of exemplary plants. Effluent results from mine to mine seem to vary for numerous reasons. This case differs from National Crushed Stone Ass’n v. EPA, 601 F.2d 111 (4th Cir.), where the court found EPA’s development document failed to “discuss the calculation process by which the agency arrived at the monthly average limit.” Id. at 118. The record here provides sufficient explanations of EPA’s calculation process: “For the ore mining and dressing industry, this level of technology [BPT] is based on the average of the best existing performance by facilities of various sizes, ages, and processes within each of the industry’s subcategories.” Dev.Doc. 723. See generally id. at 723-83. Furthermore, this is not a case where EPA has relied on critical data known only to the agency. See Portland Cement Ass’n v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375 (D.C.Cir.). Nor does petitioner’s statistical analysis refute EPA’s data. EPA provides an adequate record explanation for its selection of exemplary mines. The limitations promulgated reflect the average of the values produced by best performance. Indeed, the limitations are less stringent than the precise average of the best figure. The legal standard by which we determine the adequacy of costs consideration is whether “EPA made a serious, careful, and comprehensive study of the costs which compliance will impose on the industry.” American Petroleum Institute, 540 F.2d at 1038. There is ample evidence in the record that EPA has satisfied this requirement. EPA’s contractor performed a plant by plant cost analysis for numerous flotation mills in the base and precious metals subcategory, J.A. 2507 — 2707, which was later updated, J.A. 1880, 1884-87. An additional EPA contractor, Arthur D. Little, Inc., performed a comprehensive analysis of the regulation’s macroeconomic effects in terms of prices, production, and so forth. Accordingly, petitioner’s challenge of EPA’s cost consideration is without merit. Petitioner also challenges the storm runoff provisions on the basis that they include “nonpoint” as well as “point sources.” We consider the challenge moot in light of EPA’s Notice of Clarification concerning storm runoff provisions. The Clarification, dated February 2, 1979, has as its purpose: “. . . [T]o make it clear that those [storm runoff] provisions do not apply to diffuse storm water and runoff, but apply only to point source discharges. “The regulations are not intended to require the operator to collect and contain diffuse storm runoff which would not otherwise be collected in or does not otherwise drain into a point source.” (Emphasis added). 44 Fed.Reg. 7,953-54. This is in complete harmony with our holding that notwithstanding its lack of authority to regulate “nonpoint sources,” EPA has full authority to regulate any “point source” discharge. United States v. Earth Sciences, Inc., 599 F.2d 368 (10th Cir.). We are satisfied that EPA’s storm runoff provisions apply only to “point sources” as authorized by Congress. Kennecott urges us to strike down these provisions because they are ambiguous, arguing that it is unable to determine whether certain of its facilities are “point sources” or not. These are determinations to be made in the first instance in the context of a permit proceeding. It is sufficient here to note that EPA is entirely within its authority in regulating storm runoff that falls within a “point source.” Congress has defined “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14) (1976). Congress has purposefully phrased this definition broadly. This is as it should be given its contemplated applicability to literally thousands of pollution sources. To cast such definitions in absolute, unequivocal terms would be unrealistic, if not altogether impossible. As we observed in American Petroleum Institute, 540 F.2d at 1032: “On the road to attainment of the no discharge objective some flexibility is needed.” Careful examination of petitioner’s remaining arguments has persuaded us that they are without merit. Accordingly, the BPT regulations are affirmed. NO. 76-1288 GULF & WESTERN INDUSTRIES, INC. Petitioner challenges EPA’s effluent limitations for the base and precious metals subcategory which are set forth at 43 Fed. Reg. 29,775. This challenge arises from profound differences between exemplary mines EPA relied upon in formulating the limitations and petitioner’s Friedensville mine in western Pennsylvania. The exemplary mines are largely free of serious geologic fractures or faults, Dev.Doc. 242, and have water flows that range from 144,000 to 835,000 gallons per day, J.A. 1807. The formations at Friedensville are extensively folded and fractured, J.A. 1854-56, and the water flow is over 44,000,000 gallons per day, J.A. 1807. The petitioner contends EPA’s data fail to support the effluent limitations promulgated. Petitioner hinges its position on the assertion that EPA ignored the Friedensville situation, thereby rendering EPA’s assumptions inaccurate and data unrepresentative. Comments were submitted to EPA on October 26, 1976, wherein petitioner informed the Agency of the unusually high water flow at Friedensville. See J.A. 1808. In response EPA requested its contractor, Calspan, to revise a cost estimate previously prepared for the Friedensville mine. This cost estimate was revised to reflect the new information submitted by petitioner and received by EPA on December 3, 1976. J.A. 1875 — 79. Indeed, EPA requested its contractor to review the literature pertaining to the geology of petitioner’s mine. The contractor returned a report dated January 19, 1977, which observed that serious geological conditions may exist, but that certainty regarding these conditions would require extensive tests. J.A. 1854-58. It is obvious that EPA was fully aware of petitioner’s situation. EPA took pains to consider these facts. Thus the data base can hardly be said to rest on inaccurate or incomplete assumptions concerning water flow and geologic conditions. It is well settled that EPA may use the “best plant” standard in formulating the data base underlying the effluent limitations. American Petroleum Institute v. EPA, 540 F.2d 1023, 1034 (10th Cir.), cert. denied, 430 U.S. 922, 97 S.Ct. 1340, 51 L.Ed.2d 601. See also S.Rep. No. 92-414 at 50 (1971): “The [EPA] Administrator should establish the range of best practicable levels based upon the average of the best existing performance by plants of various sizes, ages, and unit processes within each industrial category.” Petitioner also argues that the BPT is neither practicable nor available and would have us find that its mine is “fundamentally different.” Whether this is true is not for us to decide in the first instance; this question is most appropriately addressed in the context of a permit proceeding. Natural Resources Defense Council, Inc. v. EPA, 537 F.2d 642, 647 (2d Cir.). There, the EPA will be free to exercise the flexibility built into the statute through its permit proceedings by acting on a record that focuses on petitioner’s individual circumstances. The Supreme Court’s holding in E. I. duPont de Nemours & Co. v. Train, 430 U.S. 112, 128, 97 S.Ct. 965, 51 L.Ed.2d 204, requires EPA to grant variances where appropriate. And “[a]s a result of G & W’s submissions and EPA’s own review, the agency recognizes that G & W may well be entitled to a variance.” (Respondent’s Brief at 62). The regulations are upheld. NOS. 76-1242, 76-1287, 78-1686 HOMESTAKE MINING COMPANY Homestake attacks in general the sufficiency of the data base used by EPA and alleges that EPA’s determinations are unsupported by the record. The major challenge by Homestake concerns EPA’s determination that zero discharge of waste water from gold and silver cyanidation mills is Best Practicable Technology Currently Available (BPT). Finally, Home-stake attacks EPA’s subcategorization of the gold industry and its consideration of nonwater quality impacts and costs. The Zero Discharge Limitations: The challenge by Homestake on the zero discharge limitations is based on the refusal of EPA to modify the no discharge limitation for gold mills that use the cyani-dation process after the cyanide limitations for froth-flotation process mills had been withdrawn by EPA. Homestake contends that if the total cyanide limitation for froth-flotation mills was withdrawn because inadequately supported by the record, then the no discharge limitation for cyani-dation mills cannot stand since both are based upon the same record and technology. Homestake thus urges that the retention by EPA of the no discharge limitation is arbitrary and capricious. EPA on the other hand urges that the no discharge limitation may be met regardless of regulations on cyanide as the two limitations are mutually exclusive. EPA argues that the only effluent limitations that must be met by Homestake are mine drainage restrictions in 43 Fed.Reg. 440.22(a)(1) (1978). That section does not contain any cyanide limitation. The basic requirement or method to meet the no discharge requirement is to recycle waste water within the mining and milling system. EPA notes that five active gold and silver cyanidation mills are in compliance with the no discharge requirement (Mills 4101, 4119, 4122 and 4131). In this connection, as we have elsewhere pointed out, EPA may use the average of the best technology in setting BPT. As this recycle method has been demonstrated to be feasible, it appears that zero discharge of process waste water is not unreasonable. The Data Base: Homestake urges that it was arbitrary and capricious for the EPA not to consider data on Canadian mines. However, this point only goes to the general sufficiency of the data base and cannot be considered an independent ground to challenge the regulations. See American Frozen Food Institute v. Train, 176 U.S.App.D.C. 105, 539 F.2d 107 (D.C.Cir.). As to the general challenge to the data base it is apparent that the EPA used three gold cyanidation mills out of some fourteen available. The record shows some but little further sampling after the Interim Final Regulations were promulgated. However, we cannot say on the record before us that the data base was inadequate to support the regulations under the standards of review. Many of Homestake’s comments on the data base relate to conditions existing and the extent of data available at a time too remote to be persuasive. As indicated above, we must hold that the data base was not exhaustive but was adequate to meet Homestake’s challenge. The Ferroeyanide Issue: EPA asserts that Homestake did not raise during rulemaking the issue of ferroeyanide buildup in recycling waste water, and consequently is precluded from urging such issue on appeal as a basis for invalidating the guidelines. Homestake argues that the problem arose from the recycling system that only began operating in December of 1977, and that as soon as the problem became apparent, EPA was notified. The Interim Final Regulations were issued on November 6, 1975, and suspended on May 24, 1976. The Final Regulations were published July 11,1978, about six months after the recycling operation had begun. Only free cyanide matters were raised by Homestake during rulemaking. Homestake states that EPA was notified of the problem and has been supplied with an extensive analysis of the matter. However, there are no record citations to this material, and the record itself does not appear to contain any reference by Homestake of the problem. As elsewhere held, it is well settled that industry must first utilize the opportunity for comment before it may raise issues on appeal. American Iron & Steel Institute v. EPA, 526 F.2d 1027, 1050 (3d Cir.). Absent proof that this particular problem was raised before publication of the Final Regulations, this court will not now consider the ferroeyanide issue. At any rate, if the problem is unique to Homestake’s recycling as to make the operation “fundamentally different,” then application for a variance would be appropriate. Subcategorization : EPA placed in the same subeátegory all mills using the cyanidation process alone. The challenge to EPA’s subcategorization of gold mines and mills has four parts: EPA’s consideration of mineralogy; consideration of climate, rainfall and location; failure to establish a subcategory for mines and mills using sand backfilling; EPA’s separate classification of the Knob Hill mill and Homestake mill. It is true, as Homestake argues, that all of these factors were discussed in a cursory manner, and it was determined that the most effective means of categorizing was to base it on the type of beneficiation process used, Dev.Doc. 161. It does not appear from the record that the mineralogy was seriously considered in the context of treatment problems. EPA’s rationale for this appears to be that: “The specific beneficiation process adopted is based upon the mineralogical characteristics of the one; therefore, the waste characteristics of the mine or mill reflect both the ores mined and the extraction process used. For these reasons, ore mineralogy was determined to be a primary factor affecting subcategorization in all categories.” This channeling of ore mineralogy considerations into an overall characterization based on beneficiation process is a rough sort of basis for categorization, and has some relationship to the chemistry of the waste water. It cannot be said to be arbitrary and capricious. It seems clear that climate, rainfall, and location were adequately considered and provided for by 43 Fed.Reg. 440.22(a)(4), which allows discharge from gold cyanidation mills in net precipitation areas, and by 43 Fed.Reg. 440.81(c) which allows discharges under conditions causing storm runoff. With regard to sand backfilling, Home-stake does not demonstrate why mines-mills using that device should be placed in a different subcategory. Homestake bases its argument for the most part on a statement in the Development Document that sand backfilling causes cyanide discharge problems. Dev.Doc. 256. However, cyanide discharge issues are not before us. The final argument by Homestake is the placing of Knob Hill Mill and Home-stake Mill in different subcategories is not proper. The EPA classifies Knob Hill (Mill 4104) as a froth flotation mill, apparently based on the recovery from that process, and thus under 43 Fed.Reg. 440.22(a)(2). It appears that Knob Hill processes about five percent of its ore by froth flotation and does recover eighty-five percent of its product therefrom; however, it processes the remaining ninety-five percent of its ore by the cyanidation process. The classification based on the percentage of product alone is arbitrary when it ignores the volumes of ore processed. On the record before us, it is unreasonable and arbitrary to place the Knob Hill mill and the Homestake mill in different subcategories. Consideration of Non-Water Quality Impact: Non-water quality impact must be taken into account as a factor in determining BPT. 33 U.S.C. § 1314(b)(1)(B). Home-stake’s attack on EPA’s consideration of non-water quality impact is directed specifically to the purported lack of attention given to the effect of water seepage containing cyanide on groundwater. The Development Document (p. 718) devotes one paragraph to groundwater contamination in its review of non-water quality impact, and one page discusses waste water impoundment systems such as tailing ponds (pp. 494-5). Treatment technology for tailing ponds is discussed in some detail in the Development Document at pages 425-7. Problems of seepage are specifically treated. EPA’s discussion of non-water quality impacts in general constituted only four pages of generalized discussion (Dev.Doc. pp. 718 — 21). It is evident, however, that treatment of non-water quality issues was dealt with adequately. Courts have been liberal in reviewing EPA’s treatment of non-water quality impact. In Weyerhaeuser Co. v. Costle, 191 U.S.App.D.C. 309, 348, 590 F.2d 1011, 1050 (D.C.Cir.), the court stated: “. . . As we have discussed, we believe Congress entrusted the manner of deliberation about all of the ‘consideration factors’ to EPA’s discretion, and we are prepared to uphold EPA on that basis alone.” Also, the court there said (191 U.S.App.D.C. at 351, 590 F.2d at 1053): “Thus, since Congress intended EPA’s internal structure to protect the non-water environment, the judicial function is completed when we have assured ourselves that EPA expressly considered the probable environmental impacts of its regulations.” In American Paper Institute v. Train, 177 U.S.App.D.C. 181, 543 F.2d 328 (D.C.Cir.), the same court found EPA’s consideration of non-water quality environmental impact to be sufficient. There only a few pages were devoted to discussion of air pollution, noise potential, solid waste disposal, and by-product recovery. This was the express consideration required. The court there also declined to find invalid EPA’s treatment when certain treatment processes were not discussed. A case with facts not unlike the case at bar is California & Hawaiian Sugar Co. v. EPA, 553 F.2d 280 (2d Cir.). In this case the industry complained that sludge treatment was not sufficiently considered, and the court found that EPA had recognized the problem and indicated a solution of sludge drying. The court also held that the problems were adequately considered when the agency “took into consideration the likelihood that design modification and careful placement could abate the noise and fogging problems.” In our case EPA did indicate solutions to seepage in tailing ponds, and it did “take into consideration” the fact that proper design of impoundment facilities could avoid the problem. Thus it appears that this recognition of the problem is sufficient to meet the standard for review. Consideration of Costs: The standard of review and case law trends concerning EPA’s consideration of costs is set forth elsewhere herein. The record here shows that costs were considered not only in the Development Document (616-37, considering costs for individual mines and mills), but also in an Economic Analysis of Effluent Guidelines, Ore Mining and Dressing Industry, May 1977, and the Calspan Technical Report: Cost-Data Development and Economic Analysis Supplement B-2, April 18, 1975. Capital investment, annual cost, and operation and maintenance are analyzed in detail by EPA in these reports. This is sufficient. The challenged regulations are upheld with the exception of the placing of the Knob’ Hill Mill and Homestake Mill in the same subcategory, as described in pages 32 and 33 above.

Montana Power Co. v. Environmental Protection Agency

EUGENE A. WRIGHT, Circuit Judge: These consolidated cases are classic examples of the difficulties inherent in interpreting the Clean Air Act, as amended, 42 U.S. C.A. §§ 7401, et seq. (West Supp.1978). At issue is whether Montana Power and others “commenced construction”, under the Clean Air Act and Environmental Protection Agency (EPA) regulations, of two 750 megawatt coal-fired electric generating plants at Colstrip, Montana (Colstrip Units 3 & 4) before a grandfathering cutoff date. If so, the units are exempt from precon-struction review and permitting procedures for the “prevention of significant deterioration” of air qualify (PSD review and permitting). Numbers 77-2253 and 77-2521 are appeals by the EPA and intervenors Northern Plains Resource Council and the Northern Cheyenne Tribe (collectively called the Tribe) from the district court’s declaratory judgment that Colstrip Units 3 & 4 had “commenced construction” before June 1, 1975, within the meaning of EPA’s then effective regulations and therefore were grandfathered from PSD review and permitting. Number 78-1140 is a petition by Montana Power to review the EPA’s determination that, despite the district court’s holding, the 1977 amendments to the Clean Air Act (1977 Amendments) subject Col-strip Units 3 & 4 to PSD review and permitting under a new and stricter definition of “commenced construction.” We have jurisdiction over the appeals by EPA and the Tribe under 28 U.S.C. § 1291 and over Montana Power’s petition under § 307(b)(1) of the Clean Air Act. We reverse the judgment of the district court and affirm the EPA’s determination. I. . BACKGROUND A. The PSD Regulations. The EPA promulgated regulations under the Clean Air Act, effective on January 6, 1975, -to prevent the significant deterioration of air quality. 40 C.F.R. 52.21 (1975). The purpose of the regulations was to restrict the increase in levels of particulate matter and sulfur dioxide in areas with air cleaner than that required by the national ambient air quality standards. Three classes of clean air areas were designated, in which differing additional amounts of these two pollutants would be allowed over levels existing on the baseline date. Increases exceeding the specified limits were prohibited. Enforcement of the restrictions was provided through preconstruction review and permitting of specified stationary pollution sources that included electric coal-burning power plants like Colstrip Units 3 & 4. If the EPA suspected a violation of the applicable class increments would occur, it refused the source a permit and prohibited construction. The regulations contained a grandfather clause, excluding from PSD review and permitting those sources that “commenced construction or modification prior to June 1, 1975.” Id. at 52.21(d)(1). “Construction” was defined as “fabrication, erection or installation of a stationary source.” Id. at 52.21(b)(6). More important here is the definition of “commenced”, which means that an owner or operator has undertaken a continuous program of construction or modification or that an owner or operator has entered into a contractual obligation to undertake and complete, within a reasonable time, a continuous program of construction or modification. Id. at 52.21(b)(7). If a source could establish it should be grandfathered, it might avoid additional expensive pollution control efforts. In some cases, exemption from PSD review and permitting might be the only way a source could be built in a particular location even if best available pollution control technology were used. Before June 1, 1975, Montana Power had taken some significant preliminary steps for the construction of Colstrip Units 3 & 4. Plans for Units 1 & 2, being built in the same area planned for Units 3 & 4, included excess capacity for common facilities such as a surge pond, water intake structures, and power transmission lines to serve all four plants. The company arranged for an environmental analysis of the Colstrip project in early 1973. It applied for a state construction permit in June under the Montana Major Facility Siting Act, Mont.Rev.Codes Ann. § 70-801 et seq. (Supp.1977), and executed several contracts. Due to delay in processing the permit application, Montana Power entered into no other major contracts after October 1974. The Siting Act permit was finally granted in July 1976. In September 1975, the administrator of EPA’s Region VIII informed Montana Power that its plans to build Colstrip Units 3 & 4 might be subject to PSD review and permitting, and requested more information about the project. The company responded in February 1976 and petitioned the EPA for a ruling on the applicability of the PSD regulations. B. The Strelow Memoranda. In evaluating Montana Power’s request for exemption from PSD review and permitting, Region VIII’s administrator relied upon two memoranda written by Roger Strelow, then EPA’s Assistant Administrator for Air and Waste Management, which interpreted the phrase “commenced construction”. The first memorandum, dated December 18, 1975, provided in relevant part: [T]he term “commencement of construction” . . . refers to on-site construction. Ordinarily therefore only significant and continuous site preparation work such as major clearing or excavation or placement, assembly, or installation of unique facilities or equipment at the site should be considered a “program of construction or modification” for purposes of § 52.21(b)(7). However each case must be reviewed on its own facts. There may also be situations where, although actual on-site work has not commenced or been contracted for, the source is so irrevocably committed to a particular site that it should be considered as having commenced construction. Such situations could include sources which are only a few days or weeks from commencing on-site construction or sources which have contracted for or constructed unique site specific facilities or equipment which are not yet being installed on-site. Such situations will be rare but may be taken into account in determining whether the source is in effectively the same position as if it had commenced on-site construction. Finally, 40 CFR § 52.21(b)(7) states that an owner or operator has commenced construction not only when he has undertaken a continuous program of construction or modification himself but also when he has entered into a “contractual obligation to undertake and complete, within a reasonable time, a continuous program of construction or modification”. The question of whether a contract represents a “contractual obligation” will depend upon the unavoidable loss that would be suffered by a source if it is required to cancel such contract. [W]here the contract may be cancelled or modified at an insubstantial ioss to the plant operator, the proposed source should not be allowed to escape review under these regulations. The determination of whether a source will suffer a substantial loss if the contract were terminated and therefore whether there is, in fact a “contractual obligation”, must be made on a case-by-case basis as there are no general guidelines that would cover all situations. [Emphasis added.] The second memorandum of April 21, 1976, clarified what was necessary for a contractual obligation to qualify a source for exemption from PSD review and permitting: [A]s a general rule, for one to qualify for the contractual exemption, he must have contracted for continuous on-site construction work. The discussion [on the “contractual obligation” exemption in] my December 18 memo is not intended to provide exceptions to this general rule. That discussion relates to situations in which even though a “contract” for on-site work were executed prior to June 1975, the “contract” might still not qualify the source for an exemption [because the source would experience no substantial loss]. Accordingly, the mere fact that a source had contracted for the fabrication of a piece of equipment prior to June 1975 (i. e., placing an order for a boiler) would not ordinarily exempt the source. Only if a non-site-work contract could fit within the “irrevocably committed” exception . . . would it qualify the source for an exemption from review. As my memo indicates, such situations should be “rare.” The second memorandum also stated that the absence of a state construction permit should be a “relevant factor” in determining whether a source should be exempt from PSD review and permitting because it was irrevocably committed to a specific site. Thus, using the Strelow Memoranda to interpret its regulations, the EPA would grandfather a source from PSD review and permitting only if, by June 1, 1975, the source had: (1) actually begun a continuous program of on-site construction; (2a) contracted for a continuous program of on-site construction which could not be terminated without substantial loss; or (2b) contracted for construction not amounting to a continuous program of on-site construction, but which nevertheless irrevocably committed the source to a specific site. C. Applicability of the PSD Regulations. Region VIII’s administrator advised Montana Power on February 26, 1976, of the EPA’s decision that Colstrip Units 3 & 4 were subject to PSD review and permitting. A following letter in May affirmed that decision and gave the reasons. In EPA’s view, before June 1, 1975, Montana Power: (1) had not begun actual on-site construction; (2) had not received the necessary state preconstruction permits; and (3) had not demonstrated an irrevocable commitment to a specific site, partly because it would suffer no substantial loss from the termination of its contractual obligations. The EPA based its conclusion that the company would suffer no substantial loss on a ratio of unavoidable losses to total project cost. It found that contract payments and cancellation charges amounting to $8.7 million were clearly “contractual obligations” for the construction of Units 3 & 4 and that another $13.6 million was arguably in this category. It rejected claims totaling an additional $106.5 million. Using a total project cost of $790 million, the EPA calculated that the company’s contractual obligations constituted 2.8 percent of the project’s cost and concluded that this sum was not substantial. Montana Power sought judicial review of the EPA’s final determination. In January 1977, the court granted the company declaratory, but not injunctive, relief, holding that it had commenced construction of Col-strip Units 3 & 4 before June 1, 1975, and was therefore exempt from PSD review and permitting. Montana Power v. EPA, 429 F.Supp. 683 (D.Mont.1977). In reaching its holding, the court concluded that the EPA’s determination was arbitrary and capricious because the agency recently had exempted two other electric generating plants not as far advanced as Colstrip Units 3 & 4. Id. at 699-701. It also concluded that, although the use of a ratio in determining substantiality of loss is itself not necessarily arbitrary and capricious, its application here was because of the huge sum of money, in absolute terms, already committed to the units’ construction. Id. at 701. D. 1977 Amendments. While the district court’s judgment was on appeal, Congress passed the 1977 Amendments, effective August 7, 1977. These provided for the first time explicit statutory authority for the prevention of significant deterioration of air quality, a subject previously covered only in EPA’s regulations. The amendments generally preserved the structure of the PSD regulations. But, among other modifications, the amendments enacted a stricter definition of “commenced”: (2)(A) the term “commenced” as applied to construction of a major emitting facility means that the owner or operator has obtained all necessary preconstruction approvals or permits required by Federal, State, or local air pollution emissions and air quality laws or regulations and either has (i) begun, or caused to begin, a continuous program of physical on-site construction of the facility or (ii) entered into binding agreements or contractual obligations, which cannot be canceled or modified without substantial loss to the owner or operator, to undertake a program of construction of the facility to be completed within a reasonable time. (B) The term “necessary preconstruction approvals or permits” means those permits or approvals, required by the permitting authority as a precondition to undertaking any activity under clauses (i) or (ii) of subparagraph (A) of this paragraph. Clean Air Act § 169(2). Although the definition in the amendments is substantially different on its face from the definition in the regulations, it is generally consistent with the interpretation of the regulation definition in the Strelow Memoranda. A significant difference is that the possession of necessary precon-struction permits, only a “relevant factor” in determining if a source had commenced construction under the regulations, is required for such a determination under the 1977 Amendments. The transition from the regulatory to the statutory scheme is outlined in § 168. Section 168(a) provides that, until a state’s implementation plan is revised to conform to the Act’s new PSD procedures, the pre-amendment regulations will remain in effect for that area, except as provided in subsection (b). Section 168(b) also provides that, in the case of a source which commenced construction — under the new definition of § 168(a) —after June 1, 1975, and before the effective date of the 1977 Amendments on August 7, 1977, PSD review and permitting “shall be in accordance with the regulations for the prevention of significant deterioration in effect prior to the enactment of the Glean Air Act Amendments of 1977.” On November 3, 1977, EPA amended its PSD regulations to reflect the immediately effective changes required by the 1977 Amendments, including the § 169(2) definition of “commence.” 42 Fed.Reg. 57,459 (1977). It also proposed amendments to the regulations, to take effect later, which would incorporate the other changes enacted by Congress. 42 Fed.Reg. 57,471, 57,-479 (1977). The proposed regulation amendments would “greatly expand the coverage of the EPA’s current regulations and generally impose more stringent requirements for pollution sources seeking to construct or modify in clean air areas.” 42 Fed.Reg. 57,479 (1977). A source would not be subject to the new PSD regulations if it had obtained a final PSD permit by March 1, 1978, and commenced construction before December 1, 1978. Id. at 57,481. Somewhat behind schedule, the EPA published its final amendments to the PSD regulations on June 19, 1978, conforming the regulations to the remaining requirements of the 1977 Amendments. 43 Fed.Reg. 26,388 (1978). The EPA issued a final determination on November 29, 1977, that Colstrip Units 3 & 4 had not timely commenced construction under § 169(2) of the Clean Air Act because Montana Power had not received all necessary preconstruction approvals or permits. The agency therefore found the plants were subject to PSD review and permitting under the 1977 Amendments. 42 Fed.Reg. 60,784 (1977). Montana Power petitioned this court for review of EPA’s determination and, without prejudice to its contentions on appeal, continued its efforts to obtain a PSD permit for Units 3 & 4. On June 12, 1978, EPA denied the company’s application because it determined the units would violate the Class I pollution increments applicable to the Northern Cheyenne Reservation. II. ISSUES We face two issues: (1) whether the district court erred in reversing EPA’s determination that Col-strip Units 3 & 4 were subject to PSD review and permitting under the regulations because construction had not commenced before June 1, 1975; and (2) whether the EPA erred in concluding Montana Power had not commenced construction of the units under § 169(2), thus subjecting them to PSD review and permitting under the 1977 Amendments. III. WHETHER CONSTRUCTION COMMENCED UNDER THE REGULATIONS The district court focused on EPA’s application of a “substantial loss test”, read into the regulations by the Strelow Memoranda, in holding the agency’s refusal to exempt Colstrip Units 3 & 4 from PSD review and permitting to be arbitrary and capricious. Although the EPA cited other reasons for its refusal, also challenged by Montana Power here, we need not reach those questions because of our disposition of the substantial loss issue. A. Degree of Deference. A reviewing court may set aside an agency action that is arbitrary, capricious, or an abuse of discretion. 5 U.S.C. § 706(2)(A) (1976). When making this determination, the court ordinarily must give agency interpretations of its regulations upon which the action is based the degree of deference described in Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965): When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration. . . . When the construction of an administrative regulation rather than a statute is in issue, deference is even more clearly in order. Id. at 16, 85 S.Ct. at 801 (emphasis added). Accord, Burglin v. Morton, 527 F.2d 486, 490 (9th Cir. 1975), cert. denied, 425 U.S. 973, 96 S.Ct. 2171, 48 L.Ed.2d 796 (1976); Brubaker v. Morton, 500 F.2d 200, 202 (9th Cir. 1974). See also Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). The district judge recognized that it is not the court’s province to substitute its judgment for that of the agency to which is committed the interpretation of a statute or regulations. 429 F.Supp. at 695, 697. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Ethyl Corp. v. EPA, 176 U.S.App.D.C. 373, 405-409, 541 F.2d 1, 33-37, cert. denied, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 (1976); Sierra Club v. EPA, 176 U.S.App.D.C. 335, 344, 540 F.2d 1114, 1123 (1976), vacated and remanded 434 U.S. 809, 98 S.Ct. 40, 54 L.Ed.2d 66 (1977) (in light of 1977 Amendments); Frommhagen v. Klein, 456 F.2d 1391, 1393 (9th Cir. 1972). The court concluded, however, that when an analysis of an agency’s activities involves a question concerning the meaning of a statutory term, the application of a statutory term to facts, or an agency interpretation of a statute, then the breadth of judicial review is much wider. 429 F.Supp. at 695. It also found that the Strelow Memoranda were merely intra-agency, non-public guidelines to interpret the PSD regulations and, as such, were not entitled to the usual degree of deference. We are aware that a court reviewing an agency action “must consider whether the decision was based on a consideration of the relevant factors” and that the “inquiry into the facts is to be searching and careful.” Citizens to Preserve Overton Park, 401 U.S. at 416, 91 S.Ct. at 824. But, “the ultimate standard of review is a narrow one” and the objective of the inquiry is to determine “whether there has been a clear error of judgment” by the agency. Id. See also Bone v. Hibernia Bank, 493 F.2d 135, 139 — 40 (9th Cir. 1974); Hughes Air Corp. v. CAB, 482 F.2d 143,145-46 (9th Cir. 1973); United States v. Whelan, 463 F.2d 1093, 1094 (9th Cir. 1972). Unlike the district court, we do not believe the standard set forth in Tallman allows the courts any broader grant of review when an agency determination “concernís] the meaning of a statutory term”, as long as the agency does not exceed its own statutory authorization. Here, the EPA was not interpreting a statute, but rather its own regulations, which is entitled under Tallman to even more deference. Similarly, even though we agree with the district court that the Strelow Memoranda “were merely intra-agency, non-public guidelines”, we are unpersuaded they should be given any less than normal deference as long as they are a reasonable interpretation of the PSD regulations. While we express no opinion about the other parts of the Strelow Memoranda, we conclude that a “substantial loss test” is reasonable to determine if an owner “has entered into a contractual obligation to undertake and complete, within a reasonable time, a continuous program of construction or modification.” We agree with the Tribe that, if the Memoranda alter the meaning of the regulation at all in this respect, it is to liberalize the regulation’s requirements. Thus, if a source executes contracts that could not be cancelled or modified without substantial loss, indicating an irrevocable commitment to a specific site, it would be unnecessary under the EPA’s interpretation for the contractual commitment to be either continuous or inclusive of completion. It is not enough, however, to note that the district court applied an incorrect standard of deference to the Strelow Memoran-da. Nor is it sufficient for us to conclude that passing a substantial loss test is a reasonable prerequisite to being grandfathered under the irrevocable commitment exception to PSD review and permitting. Applying the proper degree of deference, we still must decide if the substantial loss test, as applied here to Colstrip Units 3 & 4, was arbitrary or capricious. B. Prior Decisions. Before the EPA’s final determination in May 1976 refusing to grandfather Colstrip Units 3 & 4, the agency exempted two other power plants in arguably similar contractual positions. The apparent inconsistency in interpreting the regulations clearly influenced the district court. In May 1975 the Region X administrator notified Portland General Electric (PGE) that its plant at Boardman, Oregon was exempt from PSD review and permitting. The finding that PGE had obligated itself to complete within a reasonable time a continuous program of construction was based on a contract to purchase a turbine generator. After the first Strelow Memorandum was issued, the Region VIII administrator ruled in March 1976 that Pacific Power and Light Company’s Jim Bridger Unit 4 was “irrevocably committed” to its site as of June 1, 1975, because it had been designed to share facilities with existing units at that location and had executed contracts involving $5.4 million in cancellation charges. The plant was grandfathered from PSD review and permitting. Montana Power argues that before June 1, 1975, it had contracted for a turbine generator for each plant, designed Units 3 & 4 to share facilities with Units 1 & 2 then under construction, and entered into contracts that could not be cancelled without penalties of $8.7 million. It contends it was further committed to a program of construction than were the two companies building the grandfathered power plants and that Units 3 & 4 therefore were entitled to exemption from PSD review and permitting. Although the EPA and the Tribe attempt to distinguish the other two rulings on their facts, we may assume for our purposes that Montana Power’s contractual commitment to construct Colstrip Units 3 & 4 was at least as advanced as, if not greater than, those for the Boardman and Bridger plants. We may also assume, as the district court found, that the prior decisions were consistent with the regulations and that the Stre-low Memoranda demonstrated a change in policy. The question remains, however, what significance these apparently inconsistent determinations should have when evaluating the EPA’s refusal to exempt Units 3 & 4. The district court concluded that since the EPA “ha[d] switched horses in midstream”, the policies implicit in the earlier two decisions, rather than in the Strelow Memoranda, should have been used to evaluate Montana Power’s request for PSD exemption. 429 F.2d at 700-01. Although admitting that the EPA is not absolutely bound by its prior rulings, Montana Power argues that a definite shift in the interpretation of the regulations occurred, entitling the agency’s determination that Units 3 & 4 had not met the exemption prerequisites to little deference. Both the district court and Montana Power misconstrue the scope of judicial review of agency action. Even if the action involves a new interpretation of a regulation, the traditional standard of deference announced in Tallman applies: The scope of our review of an administrative order wherein a new principle is announced and applied is no different from that which pertains to ordinary administrative action. The wisdom of the principle adopted is none of our concern. See Board of Trade [of Kansas City, Mo.] v. United States, 314 U.S. 534, 548 [62 S.Ct. 366, 373, 86 L.Ed. 432.] Our duty is at an end when it becomes evident that the Commission’s action is based upon substantial evidence and is consistent with the authority granted by Congress. See National Broadcasting Co. v. United States, 319 U.S. 190, 224 [63 S.Ct. 997, 1013, 87 L.Ed. 1344.] SEC v. Chenery Corp., 332 U.S. 194, 207, 67 S.Ct. 1575, 1582, 91 L.Ed. 1995 (1947). The agency is not absolutely bound by its prior determinations, but rather may adjust its policies and rulings in light of experience:. “Cumulative experience” begets understanding and insight by which judgments are validated or qualified or invalidated. The constant process of trial and error, on a wider and fuller scale than a single adversary litigation permits, differentiates perhaps more than anything else the administrative from the judicial process. NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 349, 73 S.Ct. 287, 290, 97 L.Ed. 377 (1953). Accord, NLRB v. Weingarten, 420 U.S. 251, 264-66, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975); FCC v. WOKO, Inc., 329 U.S. 223, 228, 67 S.Ct. 213, 91 L.Ed. 204 (1946); Santos v. INS, 375 F.2d 262, 265 (9th Cir. 1967). The Boardman decision was made before either of the Strelow Memoranda was issued. It did not represent a settled agency policy. The EPA has since admitted it mistakenly exempted that plant from PSD review and permitting on the basis of a turbine generator contract. In light of our limited scope of review and the prerogative of the agency to evolve the interpretation of its regulations, we cannot say the agency was bound by that decision or improperly disregarded it in ruling on Colstrip Units 3 & 4 once national guidelines in the Strelow Memoranda had been issued. Nor can we say that the Col-strip decision is entitled to any less deference because of the Boardman plant ruling. The Bridger plant was exempted from PSD review and permitting under the “irrevocable commitment” exception explained in the first Strelow Memorandum. But the decision came prior to the second Memorandum that clarified the kind of contracts necessary for a sufficient contractual commitment to exist and emphasized that the situations in which a plant could be irrevocably committed to a site should be “rare.” In view of this clarification and the power of the agency to reasonably depart from prior rulings in light of experience, we are unable to conclude with the district court that this ruling necessarily “show[s] that an agreement to purchase a turbine generator, the sharing of on-site facilities such as a water system and a transmission system, and contracts for major components amount[s] to a commencement of construction within the meaning of 40 C.F.R. 52.-21(b)(7).” 429 F.Supp. at 696. The EPA is free to make reasonable changes in the interpretation of its regulations and in the application of the regulations to specific cases. We realize that Montana Power was first notified it was subject to PSD review and permitting on February 26, 1976, prior to the decision exempting the Bridger plant. But the letter that explained the basis of the agency’s ruling was not sent until May, after the second Strelow Memorandum was issued. Whether the agency was mistaken in its application of the first Strelow Memorandum to the Bridger plant, or it found a new and different rationale in the second Memorandum for refusing to exempt Col-strip Units 3 & 4, makes no difference. Providing the EPA does not single out the Colstrip plants for discriminatory treatment under a peculiarly harsh interpretation of its regulations and the Strelow Memoranda, we cannot say in the absence of any other evidence alleged to show arbitrary or capricious agency action that EPA was bound by its Bridger decision or that the Colstrip ruling is entitled to any less than normal deference. Cases cited to the contrary by Montana Power are either consistent with this conclusion or are distinguishable. We agree with the district court in a factually similar case that, under the circumstances here, it does not matter that the EPA “switched horses in midstream” as long as it “was astraddle a good horse when it reached the other side.” Gulf Power Co. v. EPA, PCA No. 77-0477 (N.D.Fla. May 2, 1978). C. Use of a Ratio. The district court allowed that some concept of substantiality of unavoidable loss is reasonable in determining if a source’s contractual commitment is the functional equivalent of having commenced actual construction. But the court found that, under this fact situation, use of a ratio of unavoidable loss to total project cost to determine substantiality was improper: The ratio itself is not arbitrary or capricious. Its application can be. The function of the ratio is to establish a proper balance between entrepreneurial risks and social and economic utility. . [W]ith those cases that have not commenced on-site construction but have gone past the intracorporate planning stage . . . , what the agency must do is reach the equilibrium point between investor risk and irrevocable external commitments that amount to a continuing program of construction, a program based not on speculation but upon a well-designed construction plan. 429 F.Supp. at 701. The court concluded that the “assumption that ‘substantial’ must be measured in relative rather than absolute terms . . . results in a capricious application of the policy designed to strike a balance between investor risk and social utility.” Id. Although Montana Power apparently agrees that the Strelow Memoranda properly read into the regulations a “substantial loss test”, it argues that nothing in the memoranda justified use of a ratio to determine substantiality in its case. It concedes that, despite the lack of reference in the memoranda, a ratio might be the fairest way to measure substantial loss for smaller projects, but argues that a ratio works an injustice on larger projects in which the stakes are higher. It contends that its unavoidable loss exceeding $22.3 million as of June 1, 1975, was clearly substantial in absolute terms. Had we such an option, we might as a matter of policy define “substantial loss” to include significant cancellation or modification costs, in absolute terms, that only constitute a small percentage of the total anticipated cost of a large project such as Col-strip Units 3 & 4. In light of the deference we must accord the EPA’s interpretation of its own regulations, however, we do not have that option. The EPA could reasonably conclude that the developers of a large power plant were not “irrevocably committed” to the project at a given site unless their investment had reached a specific percentage of the total cost, regardless of the amount already expended. Here, $22.3 million is clearly a significant sum, but it was only 2.8% of the total cost, a relatively modest investment in terms of the overall project. The EPA is not required to view the substantiality of loss from the stockholder’s perspective, which might include sums significantly smaller than that committed by Montana Power here. It may use a more objective standard such as a ratio. It does not matter that the EPA apparently failed to use a ratio in the Boardman and Bridger plant decisions. As we have discussed, an agency may make reasonable changes in the interpretation of its regulations in light of experience. Neither the district court nor Montana Power suggested a formula by which sub-stantiality of loss could be measured by a ratio on some projects, particularly on smaller ones, but by the absolute amount of unavoidable loss for larger power plants such as Colstrip Units 3 & 4. Nor was it practical for them to have done so. The determination of substantiality of loss for exemption from PSD review and permitting must be made on a case-by-case basis and is properly consigned to the sound discretion of the EPA. Even if the EPA’s objective in determining substantiality of loss was to “strike a balance between investor risk and social utility,” we cannot say that the agency showed a “clear error of judgment,” Citizens to Preserve Overton Park, 401 U.S. at 416, 91 S.Ct. 814, in using a ratio of unavoidable loss and total project cost to strike the balance. The district court merely substituted its judgment for that of the agency. As the Supreme Court noted in another context, the agency’s “interpretation may not be the only one permitted by the language of the [regulations], but it is quite clearly a reasonable interpretation; courts must therefore respect it.” Tallman, 380 U.S. at 4, 85 S.Ct. at 795. D. Notice and Hearing. The district court interpreted the alleged policy changes effected by the Strelow Memoranda to be an exercise of EPA’s rule-making function. Because the memoranda were issued without notice or hearing, it found them to be adopted improperly. We conclude, however, that the memoranda were merely “interpretive rules” under 5 U.S.C. § 553(b)(3)(A) (1976), and that rulemaking procedures were unnecessary. IV. WHETHER CONSTRUCTION COMMENCED UNDER THE 1977 AMENDMENTS Although we have determined that Col-strip Units 3 & 4 are subject to PSD review and permitting under the pre-amendment regulations, we still face the question of how the 1977 Amendments affect the project. No party discussed adequately the interrelationship of the pre- and post-1977 Amendment PSD review and permitting schemes. The EPA and the Tribe imply they would be “satisfied” if Units 3 & 4 are subject to review under either scheme. In light of changes in the regulations after the 1977 Amendments, however, which could make more difficult securing a PSD permit for the units, we consider Montana Power’s petition for review of the EPA’s determination that it had not commenced construction under the 1977 Amendments before August 7, 1977. A. Refining the Issue. The new definition of “commence” in the 1977 Amendments generally follows the Strelow Memoranda interpretation of the pre-amendment regulatory definition, with one significant distinction. As with the Memoranda interpretation, an owner or operator must either begin “a continuous program of physical on-site construction” or enter into contractual obligations, “which cannot be canceled or modified without substantial loss . . ., to undertake a program of construction of the facility to be completed within a reasonable time.” Clean Air Act § 169(2)(A). The difference is that, whether a source “has obtained all necessary preconstruction approvals or permits required by Federal, State or local air pollution emissions and air quality laws or regulations,” id, is no longer merely a “relevant factor” in determining if a source is irrevocably committed to its site, but rather is a prerequisite to satisfying the definition of “commence” irrespective of how the source claims its exemption. Section 168 bridges the gap between the regulatory and statutory definitions of “commence.” It provides that if a source meets the statutory definition between June 1, 1975, and August 7, 1977, “the review and permitting of such facility shall be in accordance with” the pre-amendment PSD review and permitting procedures in the regulations. Thus, three time periods are relevant under the 1977 Amendments to determine the effect of PSD review and permitting on a given source. If the source “commenced construction,” as defined in the statute: (1) before June 1, 1975, it is exempt from PSD review and permitting under the 1977 Amendments; (2) between June 1, 1975, and August 7, 1977, it is subject to PSD review and permitting under the pre-amendment regulations; and (3) after August 7, 1977, or not at all, it could be subject to stricter PSD review and permitting under the PSD regulations amended to conform to the 1977 Amendments. There is no question that Montana Power did not commence construction, under the statutory definition, before June 1,1975. It concedes it began no on-site construction before that date and we determined above that, under the EPA’s acceptable interpretation, the company would sustain no substantial loss if it had been forced to cancel or modify its contractual obligations as of that time. Montana Power argues that, even if it had not commenced construction under the statutory definition before June 1, 1975, it did so before August 7, 1977. It maintains that the language in § 168, specifying that sources commencing construction in this interim shall be reviewed “in accordance with” the regulations in effect before the 1977 Amendments, preserves the Colstrip Units’ grandfather status as established by the district court. Since we reverse the district court, we need not reach this issue. Montana Power is at least subject to PSD review and permitting under the pre-amendment regulations. Even if it commenced construction under the statutory definition before August 7, 1977, the same PSD requirements would apply. The issue then becomes whether it failed to commence construction before August 7, 1977. If so, Colstrip Units 3 & 4 might be subject to the stricter PSD review and permitting procedures in the regulations amended to conform to the 1977 Amendments. B. Necessary Preconstruction Approvals or Permits. After prevailing in the district court, Montana Power began land clearing at the Colstrip site in June 1977. It asserts these operations began a “program of physical on-site construction” that would have been continuous but for the EPA’s order to halt construction in September. It also argues that its unavoidable loss as of August 7, 1977, had grown to $78.5 million and that this sum was clearly substantial, even using the EPA’s ratio approach. Establishing only that on-site construction had begun or that its unavoidable loss would be substantial is insufficient to meet the definition of “commence” in the 1977 Amendments. It is also necessary to demonstrate a source has all necessary precon-struction approvals or permits prior to the cut-off date. Montana Power obtained a permit in June 1976 under the Montana Major Facility Siting Act, Mont.Rev.Codes Ann. § 70-801 et seq. It did not receive a permit from the state’s Department of Health and Environmental Sciences, under the Montana Clean Air Act, Mont.Rev.Codes Ann. § 69-3911 (Supp. 1977), until January 1978. The company argues that it needed neither permit to satisfy the definition of “commence” in the 1977 Amendments. Alternatively, if any permits were required, it asserts the only one necessary was the one received under the Siting Act, issued before the effective date of the 1977 Amendments. Because of the way we decide the approvals or permits issue, we do not reach Montana Power’s representations about on-site construction begun or substantial loss incurred before August 7, 1977. 1. Section 169(2)(B) Montana Power argues that § 169(2)(B) makes clear it needed no preconstruction permits to satisfy the definition of “commence” in the 1977 Amendments. Referring to the immediately preceding subsection, § 169(2)(A), which defines “commence” as having “all necessary precon-struction approvals or permits” and either (i) having begun on-site construction or (ii) having entered into sufficient contractual obligations, § 169(2)(B) provides: The term “necessary preconstruction approvals or permits” means those permits or approvals, required by the permitting authority as a precondition to undertaking any activity under clauses (i) or (ii) of subparagraph (A) of this paragraph. The use of the disjunctive “or” in connection with the plural “clauses” creates a significant problem of interpretation. Montana Power emphasizes the disjunctive “or” and argues that the phrase “any activity under clauses (i) or (ii)” is the grammatical equivalent of “any activity under clause (i) or any activity under clause (ii).” It says that a source must have pre-construction permits necessary for either on-site construction or entering into contractual obligations, but not both. Since the contractual obligations on which it relies for its PSD exemption claim required no approval from any permitting authority before their execution, the company argues it satisfied the definition of “commence” in § 169(2)(A). The EPA emphasizes the plural “clauses” and contends the phrase “any activity under clauses (i) or (ii)” means “any activity mentioned in either clause.” It argues that the company needed all permits necessary for contracting and for on-site construction. Since it had no permit under the Montana Clean Air Act before August 7, 1977, it could not have commenced construction under § 169(2)(A). The disputed phrase is ambiguous and could be given either interpretation, another example of poor drafting requiring judicial deciphering. Unfortunately, the legislative history is equally confused. The definition of “commence” in the 1977 Amendments, as reported out of committee, did not define “necessary preconstruction approvals or permits.” During Senate debate on the measure, Senator Henry M. Jackson proposed an amendment: [T]he term “necessary preconstruction approvals or permits” means those permits or approvals, if any, required as a precondition to undertaking any activity relied upon by an owner or operator to satisfy the requirements in clauses (i) or (ii) 123 Cong.Rec. at S9455 (daily ed., June 10, 1977) (emphasis added). The emphasized words were deleted later by a House and Senate Conference Committee. Montana Power argues that Senator Jackson’s explanation of the amendment on the Senate floor confirms its interpretation. It contends a contrary interpretation, as that offered by the EPA, might moot the appeal from the district court, something that Congress seemingly tried to avoid. Since the Conference Committee, in reporting out the altered version of Senator Jackson’s amendment, declared there had been only “a slight modification of the ‘commenced construction’ definition,” H.R.Rep. No. 95-564, 95th Cong., 1st Sess. 153 (1977), U.S.Code Cong. & Admin.News 1977, p. 1533, the company says the original intent of Jackson’s amendment was preserved. That intent allegedly was to permit a source that had relied only on its contractual commitments for its PSD exemption claim to satisfy the permit requirement automatically because it needed no permits just to execute contracts. The EPA responds that, even if Montana Power correctly read Senator Jackson’s intent in offering the amendment, Congress did not agree. It cites the Senate Report describing the purpose of the definition of “commence,” a comment by Senator Jackson as an introduction to his amendment, and remarks of Senator Muskie, to show a congressional intent that a source needed all preconstruction permits, notably those necessary for on-site construction, to satisfy the definition of “commence” in § 169(2)(A). It reminds us that the version that emerged from the Conference Committee removed any possibility of a different interpretation. Although conceding that Congress wanted to preserve the issues in the district court case, the EPA also quotes remarks by the chief sponsor of the 1977 Amendments in the House that the Conference Committee intended to create no special exception for Colstrip Units 3 & 4, which the EPA contends would result by using Montana Power’s interpretation of the Jackson amendment. The EPA finally argues Senator Jackson held the mistaken idea that, when he proposed his amendment, Montana Power had all necessary permits for on-site construction. This is consistent, the agency contends, with his comment that Montana Power “ha[d] completely complied with the law” and that his amendment would “not prejudice the litigation that is pending” in the district court. The legislative history is rife with inconsistencies, and the explanations of the parties attempting to rationalize it to correspond with their different interpretations are often strained. When conflicting, inconclusive views form the greater part of the legislative history, we are left with divining the “intent” of Congress from the overall purpose of the statute in question. One of the declared purposes of the Clean Air Act is “to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.” Clean Air Act § 101(b)(1). PSD review and permitting is the only method of enforcing the allowable pollution increments applicable to sources such as Colstrip Units 3 & 4. Exemptions claimed from PSD review and permitting therefore must be so examined as not to contravene the basic policy of the Act. Section 169(2)(A) requires a source seeking to satisfy the definition of commence to obtain “all necessary preconstruction approvals or permits required by Federal, State, or local air pollution emissions and air quality laws or regulations” (emphasis added). On its face, this language admits of no exceptions. The kind of permits specified is also important. By requiring “preconstruction approvals or permits,” the language of the statute implies that the kinds of permits required are those necessary to begin construction. This does not coincide with Montana Power’s understanding that it did- not need any construction permits to satisfy the definition of “commence” because it relied only upon its contractual obligations to claim a PSD exemption, and no permits are necessary to enter contracts. All parties agree that the § 169(2) definition of “commence” is stricter than the pre-amendment regulatory definition. Yet, when the regulatory definition is viewed in light of the Strelow Memoranda, there is but one important distinction that could make the statutory definition stricter. As interpreted by the Memoranda, the regulatory definition made possession of necessary preconstruction permits only a “relevant factor” in determining if a source was irrevocably committed to a specific site. In § 169(2)(A)-(B), possession of required permits is mandatory to satisfy the definition of commence. This casts doubt on any interpretation of the statute that would weaken the definition of “commence” and allow a source to satisfy it easily. Montana Power suggests a definition of § 169(2)(A)-(B) that would allow a source to “commence construction” merely by entering into contractual commitments. Under this interpretation a source could begin construction illegally, lacking the necessary permits, but satisfy the definition of “commence” as long as it relied solely on its contractual obligations in claiming PSD exemption. This is hardly a “stricter definition” than that in the regulations, and we doubt Congress intended such a result. Senator Jackson may have intended in his proposed amendment to allow Col-strip Units 3 & 4 to satisfy the permit requirement under § 169(2)(A) merely on the basis of its contractual commitments. But so interpreted, the amendment appears to be special legislation the primary purpose of which is to benefit Montana Power. Absent a clearer showing, we are unwilling to ascribe this intent to Congress. If Congress had wanted the Jackson amendment to protect the Colstrip Units against the possible adverse effects of the 1977 Amendments, it could easily have so stated. It did not. 2. Requirements of the Montana Clean Air Act Even if the phrase “necessary precon-struction approvals or permits” in § 169(2)(A)-(B) is interpreted to mean those permits necessary for actual on-site construction, Montana Power argues it obtained the only permit required before the effective date of the 1977 Amendments. The company received approval under the Montana Major Facility Siting Act, Mont. Rev.Codes Ann. §§ 70-801 et seq., in July 1976. It received no permit under the state Clean Air Act, Mont.Rev.Codes Ann. §§ 69-3906 et seq., until January 1978. It asserts that the state Clean Air Act permit is not required under § 169(2)(A)-(B), and that it sought one only to avoid protracted litigation as to its necessity. The EPA contends that permits under both the Siting Act and the state Clean Air Act are “necessary pre-construction approvals or permits.” The state Clean Air Act was enacted in 1967. With its regulations, it is part of the state’s implementation plan under the federal Clean Air Act. While a parent organization administers the plan generally, the Board of Health and Environmental Sciences controls the permitting of all new sources of air pollution: The board may by rule prohibit the construction, installation, alteration, or use of a machine, equipment, device, or facility which it finds may directly or indirectly cause or contribute to air pollution . , unless a permit therefor has been obtained. Mont.Rev.Codes Ann. § 69-3911. The regulations require two permits, one for construction and one for operation or use. Mont.Admin.Code §§ 16 — 2.14(1) — S1400(l)— (9), (11). The Major Facility Siting Act, enacted in 1973, specifically governs “the construction of additional power or energy conversion facilities” and is meant “to ensure that the location, construction and operation of power and energy conversion facilities will produce minimal adverse effects pn the environment.” Mont.Rev.Codes Ann. § 70-802. Before a facility may be constructed or operated, it must obtain a “certificate of environmental compatibility and public need,” the equivalent of a permit. Id. at § 70-804. The Board of Natural Resources and Conservation controls the issuance of permits under the Siting Act. It may not grant one unless it determines that duly authorized state air and water quality agencies have certified that the proposed facility will not violate state and federally established standards and implementation plans . Id. at § 70-810(l)(h). The relevant agency is the Board of Health, which is responsible for issuing a permit under the state Clean Air Act. Section 70-817 of the Siting Act provides that, once a permit under the act has been granted, [notwithstanding any other law, no state or regional agency, or municipality or other local government, may require any approval, consent, permit, certificate, or other condition for the construction, operation, or maintenance of a facility authorized by a certificate issued pursuant to this chapter; except that the state air and water quality agency or agencies shall retain authority which they have or may be granted to determine compliance of the proposed facility with state and federal standards and implementation plans for air and water quality and to enforce those standards . . . . (Emphasis added.) Montana Power argues that findings of the Board of Health in certifying a source to the Board of Natural Resources under the Siting Act duplicate those it must make under the state Clean Air Act. Since the Siting Act deals specifically with new energy sources and is, comprehensive to the exclusion of other state statutes, the company argues that the certification by the Board of Health that was necessary to obtain its Siting Act permit constitutes permission to construct under the state Clean Air Act as well. The company reads narrowly the exception to § 70-817, which protects the authority of state air quality agencies like the Board of Health “to determine compliance of the proposed facility with state and federal standards.” Instead of interpreting the exception as ensuring the Board of Health’s power to issue construction permits, which might detract from the comprehensive scheme of the Siting Act, Montana Power argues that the exception only preserves the Board’s power to grant use permits, for which there is no analogue in the Siting Act. Since a use permit is issued only after a source is constructed, it cannot be a preconstruction approval or permit required by the definition of “commence m § 169(2)(A). This understanding of the relationship between the state Clean Air Act and the Siting Act is strained, at best. The language of § 70-817 preserving the authority of the Board of Health is not limited to issuing use permits. It allows the Board “to determine compliance of the proposed facility” with applicable standards. Use permits granted after a facility is built cannot be for a “proposed” facility. Whether construction permits required under the state Clean Air Act and Siting Act are duplicative is not our concern. That is a matter for the Montana legislature. Section 169(2)(A)-(B) requires a source to obtain “those permits or approvals . . required by the permitting authority,” in this case the State of Montana and its agencies. Since Montana Power did not have both a state Clean Air Act permit and a Siting Act permit before August 7, 1977, it did not commence construction under the definition in the 1977 Amendments. IV. CONCLUSION Montana Power did not commence construction of Colstrip Units 8 & 4, as that term is defined in the pre-amendment regulations, before June 1, 1975. Nor did it commence construction under § 169(2)(A) of the 1977 Amendments before August 7, 1977. The units therefore are subject to PSD review and permitting as outlined in the amended Clean Air Act and the applicable regulations. The district court judgment in Nos. 77-2253 and 77-2521 is REVERSED and the EPA’s determination in No. 78-1140 is AFFIRMED. . The Clean Air Act was twice amended in 1977. Substantive amendments were enacted on August 7, 1977, Pub.L.No.95-95, 91 Stat. 712, and technical amendments were enacted on November 16, 1977, Pub.L.No.95-190, 91 Stat. 1405. The Act was recodified from 42 U.S.C. §§ 1857 et seq. to 42 U.S.C. §§ 7401 et seq. Because the relevant period here includes times both before and after the recodification, citations will be to the sections of the Clean Air Act itself. . In addition to Montana Power, the following are part of the consortium to build Colstrip Units 3 & 4 and are parties to this appeal: Puget Sound Power and Light Co.; Portland General Electric Co.; Washington Water Power Co.; and Pacific Power and Light Co. . The Clean Air Act amendments of Dec. 31, 1970, Pub.L.No.91-604, 84 Stat. 1676 (1970); outlined a federal-state partnership in achieving the objectives of the Act. The EPA was responsible for designating air pollutants which endangered public health or welfare and for establishing national primary and secondary ambient air quality standards for each pollutant. Each state was responsible for submitting an implementation plan to the EPA specifying how the standards would be achieved and maintained. If the state plan satisfied certain criteria, the EPA had to approve it; if not, the agency had to promulgate regulations establishing its own plan for the state. No criterion for EPA approval required state implementation plans to preserve existing air quality cleaner than that mandated by national primary and secondary standards. Relying on the statement of purpose in the Act’s preamble, however, the court in Sierra Club v. Ruckel-shaus, 344 F.Supp. 253 (D.D.C.1972), ordered the EPA to disapprove state plans insofar as they did not prevent the significant deterioration of air quality and to promulgate appropriate PSD regulations. The decision was affirmed on appeal. 4 E.R.C. 1815 (D.C.Cir. 1972); aff’d by an equally divided court sub nom. Fri v. Sierra Club, 412 U.S. 541, 93 S.Ct. 2770, 37 L.Ed.2d 140 (1973). A number of challenges to .the regulations heard in Sierra Club v. EPA, 176 U.S.App.D.C. 335, 540 F.2d 1114 (1976), proved unsuccessful. The Supreme Court granted certiorari on two issues but, after passage of the 1977 Amendments, vacated and remanded the cause “for further consideration in light of Clean Air Act Amendments of 1977 . . ., and to consider the suggestion of mootness.” Montana Power v. EPA, 434 U.S. 809, 98 S.Ct. 40, 54 L.Ed.2d 66 (1977). The court of appeals remanded to the EPA for reconsideration. Sierra Club v. EPA, 176 U.S.App.D.C. 335, 540 F.2d 1114 (1977). The EPA has issued no final determination on the interplay of the regulations and the 1977 Amendments, and the parties here do not challenge the regulations’ validity. . EPA structured the classifications such that: Class I applied to areas in which practically any change in air quality would be considered significant; Class II applied to areas in which deterioration normally accompanying moderate well-controlled growth would be considered insignificant; and Class III applied to those areas in which deterioration up to the National standards would be considered insignificant. 39 Fed.Reg. 42,510 (1974). The agency initially designated all clean air areas as Class II. 40 C.F.R. 52.21(c)(3)(i). A state could propose redesignation for any area within its boundaries, id. at 52.21 (c)(3)(ii) — (iii), except Indian reservations, for which only “the appropriate Indian Governing Body” could propose a change. Id. at 52.21(c)(3)(v). . As originally promulgated, the definition of “commenced” referred to a “binding agreement or contractual obligation.” 39 Fed.Reg. 42,510, 42,515 (1974) (emphasis added). In an amendment meant to have “no substantive effect,” the italicized words were deleted in June 1975 to give the definition quoted in the text. 40 Fed.Reg. 25,004 (1975). . Montana Power issued a letter of intent to Westinghouse Electric Corp. in June 1973 for the purchase of two turbine generators, at a cost exceeding $45 million. Shortly thereafter, it appointed Bechtel Power Corp. as the architect and engineer for the units. In November, C.T. Main, Inc. received the engineering responsibility for the transmission system. In the first three months of 1974, the company issued a purchase order to Combustion Engineering, Inc. for two steam generators costing $67 million, engaged Northern Testing Laboratories for soil exploration preparatory to on-site construction, and ordered reinforcing steel for the plans from Paper Calmenson & Co. Later in 1974, the company ordered condensers and feedwater heaters from Westinghouse for nearly $4 million, closed a contract for coal silos, and ordered additional steel and bleeder trip valves. . Intervenors petitioned the District Court of Montana to review the issuance of the permit by the Board of Natural Resources and Conservation. The court reversed the decision of the Board and enjoined construction of Colstrip Units 3 & 4. Northern Plains Resource Council v. Board of Natural Resources and Conservation, No. 40462 (Mont. 1st Dist., Mar. 3, 1978). On appeal, the Montana Supreme Court dissolved the injunction pending final disposition. It recently issued its opinion, affirming and reversing in part. 594 P.2d 297 (Mont. 1979). The court remanded to the Board of Natural Resources for additional findings of fact and conclusions of law on several matters, to be made within 90 days, and suspended the Siting Act permit pending compliance with the order. Although the validity of the permit is still in doubt, we will assume for our purposes that Montana Power received a valid Siting Act permit in July 1976. . The parties seemingly list numbers (2a) and (2b) as distinct and separate reasons for exemption. A reading of the Strelow Memoranda could give the impression they are unrelated, but careful examination indicates they are two sides of the same coin. Both fall under the general umbrella of the “contractual obligation exemption” described in the regulations. As interpreted in the Stre-low Memoranda, the regulations permit a source to be grandfathered on either of two types of contractual obligations: if the contracts are for on-site construction; or, when they are for non-site work, if they fall within the irrevocable commitment category. Because both fall under the contractual obligation exemption, the substantiality of loss if the contracts were cancelled or modified is relevant to both. Thus, if a source had contracted for specific equipment to be built off-site (probative of an irrevocable commitment to a specific site), and the contract could not be terminated without substantial loss, the source could be exempt from PSD review and permitting even though no contractual obligation for a continuous program of on-site construction existed. This is the basis of Montana Power’s claim of exemption. . The regional administrator had the benefit of only the first Strelow Memorandum before his February decision. He received the second memorandum before writing the May letter affirming his original decision and explaining the reasons. . The $13.6 million figure included the cost of design studies by Bechtel Power Corp., environmental studies, prorated excess capacity of Colstrip Units 1 & 2, and an engineering study and design for a 500 Kilovolt transmission line. . Among the claims rejected by the EPA as non-contractual obligations were the cost of the application fee for a Siting Act permit, a convertible 230 Kilovolt transmission line, and administration and legal costs. The agency also rejected a claim of $93 million in anticipated additional costs due to inflation if the units’ site was changed and construction delayed. . The court found that, although Montana Power had shown a strong likelihood of success on the merits, it had not demonstrated that a denial of injunctive relief would cause it irreparable harm, that an injunction would not significantly damage the opposing parties, and that the public interest weighed in its favor. The court concluded: A basic proposition is that the fundamental function of a preliminary injunction is to preserve the status quo pending a determination of the action on the merits. ... In this case, the plaintiffs are asking for a preliminary injunction which would allow them to commence on-site construction of a major new power plant. At the commencement of this action, the Power Company had not begun on-site construction at the Units Three and Four sites. Thus, an injunction at this point would allow a severe alteration in the status quo. Preliminary injunctive relief at this point would allow the plaintiffs substantially all the injunctive relief they could obtain on a final determination of the merits and must, therefore, be denied. 429 F.Supp. at 702 (citations omitted). . The court also found that “[t]he agency determination in this case fails to allow committed funds for planning.” 429 F.Supp. at 701. It apparently thought that the EPA had not considered the $13.6 million in the “arguably” contractual commitments category when computing the ratio of unavoidable losses to total project cost. The opposite is true. The 2.8% of total cost figure is based on a contractual commitment of $22.3 million and includes the “arguably” category. On appeal, the EPA and Montana Power agree on these figures. . The amended Clean Air Act retains the system of three classes of clean air areas with different levels of allowable pollution increments and still requires major pollution sources, including coal-fired electric generating plants, to obtain a PSD permit before beginning construction. A permit is granted only if the best technology is used and if the source will not violate the pollution increment limits in its immediate and surrounding class areas. . The 1977 Amendments tightened the permissible incremental limits for the three classes of clean air areas, § 163, designated certain national parks and wilderness areas as mandatory Class I areas, § 162(a), reduced EPA’s authority to review proposed class redesigna-tions substantively, § 164(b)(2), and toughened the PSD review and permitting requirements, § 165. . Even before a state submits a new implementation plan, pre-amendment regulations are deemed amended to conform to immediately applicable sections of the Act: § 162(a) (classifying certain national parks and wilderness areas as mandatory Class I areas), § 163(b) (establishing the allowable pollution increments for the three classes of clean air areas), and § 164(a) (prohibiting reclassification of certain areas to Class III). . The text of § 168 reads: (a) Until such time as an applicable implementation plan is in effect for any area, which plan meets the requirements of this part to prevent significant deterioration of air quality with respect to any air pollutant, applicable regulations under this Act prior to enactment of this part shall remain in effect to prevent significant deterioration of air quality in any such area for any such pollutant except as otherwise provided in subsection (b). (b) If any regulation in effect prior to enactment of this part to prevent significant deterioration of air quality would be inconsistent with the requirements of section 162(a), section 163(b) or section 164(a), then such regulations shall be deemed amended so as to conform with such requirements. In the case of a facility on which construction was commenced (in accordance with the definition of ‘commenced’ in section 169(2)) after June 1, 1975, and prior to the enactment of the Clean Air Act Amendments of 1977, the review and permitting of such facility shall be in accordance with the regulations for the prevention of significant deterioration in effect prior to the enactment of the Clean Air Act Amendments of 1977. . EPA’s decision to amend its PSD regulations to give immediate effect to certain requirements of the 1977 Amendments, while postponing action on other necessary changes, was the result of an apparent conflict in §§ 165 and 168 regarding the effective date of the stricter PSD review and permitting procedures in the amendments. The EPA’s accommodation of the conflict was upheld in Citizens to Save Specer County v. EPA, 195 U.S.App.D.C. 30, 600 F.2d 844 (1979). . It is difficult to remember which PSD regulations a source might avoid if it commenced construction by a certain date. In proposing the last amendments to the regulations that would conform them to the requirements of the 1977 Amendments, the EPA attempted to clarify: It will be important in some cases to determine whether a source has “commenced” construction, as defined in Section 169(2), by a certain date. If a source commenced construction prior to June 1, 1975, it may be exempt from PSD review altogether. If a source commenced construction prior to August 7, 1977, it may be exempt from the immediately effective changes to EPA’s PSD regulations. If a source will commence construction prior to December 1, 1978, it may be exempt from the new PSD requirements being proposed today (provided it obtains a final PSD permit approval by March 1, 1978). 42 Fed.Reg. 57,479, 57,481 (1977). . Montana Power had originally applied for a PSD permit for Units 3 & 4 in July 1976 to guard against the possibility of losing its exemption argument. Although the EPA determined in September that the units would meet the Class II limits then applicable, it withheld final decision pending receipt of an anticipated application to redesignate the Northern Cheyenne Indian Reservation, 15 miles away, as a Class I area. The Tribe proposed the redesignation in March 1977, and the EPA approved it in August. Montana Power is an intervenor in a case now before this court, Nance v. EPA, No. 77-3058, challenging the propriety of the reclassification. After vacillating in its decision, first advising the company it would deny the permit and then that it would grant it under certain conditions, the EPA announced after an extended period for public comment that it was denying the permit because of an expected violation for a few days each year of the Class I sulfur dioxide limits for the reservation. Montana Power also intervened in another case on appeal, Puget Sound Power and Light Co. v. EPA, Nos. 78-2821, 78-3234, challenging the permit denial. . Montana Power takes particular issue with the interpretation of the regulations in the second Strelow Memoranda making possession of state construction permits a “relevant factor” in determining whether a project is irrevocably committed to a specific site. The company contends that this interpretation exceeds the scope of the regulations, which have no mention of state permits in the definition of “commence.” The EPA responds that the company may not accept the Strelow Memoranda’s interpretation of the regulations by claiming an “irrevocable commitment” exemption while asserting the memoranda are invalid insofar as they make possession of state permits a relevant factor in determining the degree of commitment. The Tribe agrees with Montana Power that the second memorandum is inconsistent with the regulations, but for a different reason. It contends the possession of state permits should be a requirement, not merely a relevant factor, in determining the degree of commitment. . The Tribe reads the regulations literally to require contracts for actual commencement and completion of a continuous program of construction. It argues the regulations “simply do not permit construction to be deemed to have commenced merely because sums of money, large or small, have been expended.” Although we disagree with the Tribe’s contention that the EPA exceeded its authority by including a substantial loss test in the regulations, we agree that the EPA’s interpretation liberalized the regulation’s facial meaning. . As discussed infra, the district court and Montana Power concede that some concept of substantiality of loss is properly read into the regulations. . The Tribe argues the Boardman decision is distinguishable because Portland General Electric had received a state construction permit before June 1, 1975. Montana Power had no state permit for Colstrip Units 3 & 4 until July 1976. The company responds that there is no indication possession of a state permit was even considered in the Boardman decision since the regulations did not clearly require it and the Strelow Memoranda, which made possession a “relevant factor” in determining if a source was sufficiently committed to a site to be grandfathered, had not yet been issued. The Tribe attempts to distinguish the Bridger ruling, asserting the EPA believed at the time of its decision that the total Bridger cost would be $60 million and that $5.4 million in cancellation charges would have amounted to 9% of the total cost. The EPA also asserts it had this belief and offers similar calculations in its attempt to distinguish the ruling. This proposition is difficult to sustain. Sixty million dollars is a meager sum for a major power plant. Moreover, the EPA’s exemption letter to Pacific Power and Light stated that “the record reflects that prior to June 1, 1975, contracts for major components of the system had been entered into resulting in a commitment of approximately $60,000,000 which could not be breached without incurring cancellation charges in excess of $5,400,000.” (Emphasis added.) Thus, the EPA properly understood that $60 million was not the total cost of the Bridger project, but rather was the total of contract commitments by June 1, 1975. . The court implied that Montana Power had relied on the EPA’s interpretation of the regulations before the Strelow Memoranda, as reflected in the Boardman and Bridger decisions. It spoke of the weight to be given the memo-randa: The principle of Udaii that deference is due the agency’s interpretation of the regulations addresses the extra-agency statements, not the intra-agency guidelines. An agency’s public acts bear more weight than its private working papers. To overcome a good faith reliance on the former, the record must affirmatively reflect a basis to give deference to the latter. None exists in this case. 429 F.Supp. at 698. Later the court concluded: The intercorporate communication networks in industries like the utility industries are sophisticated and thorough. Thus, a very logical and a good faith interpretation by the Montana Power Company would be that its contractual commitments would exempt Units Three and Four from the preconstruction review. Id. at 700. There is no basis in the record for finding that Montana Power relied on the Boardman and Bridger rulings in developing Colstrip Units 3 & 4 to avoid PSD review and permitting. Nor does the company make that contention. It would have been difficult to do so. The Boardman decision was announced two weeks before the grandfathering cut-off date and the Bridger decision came nine months later. . In its proposed rules to conform the PSD regulations with the requirements of the 1977 Amendments, published just before the EPA’s final determination on Colstrip Units 3 & 4, the agency described for public comment a “10% test” by which substantial loss could be measured: Under this test, if the amount the owner would have to pay to cancel construction agreements (as of the date in question) would total more than 10% of the total project cost for the source in question, the loss would be deemed “substantial.” 42 Fed.Reg. 57,479, 57,481 (1977). In the commentary accompanying the new PSD regulations promulgated on June 19, 1978, the EPA noted the result of the public comments and outlines its current practice: Several comments were received, particularly from industry, on the “10 percent” test. Many of the commentators thought that the 10 percent rule was arbitrary since they regarded even smaller percentage losses on a $100,000,000 project as clearly being substantial. In response to these comments, EPA has abandoned the proposed 10 percent test as a firm rule. However, in order to help minimize administrative burdens and to provide some certainty, the Administrator will consider a loss as being substantial if it would be more than 10 percent of the total project cost. Whether a loss equal to or less than 10 percent is substantial will be determined on a case-by-case basis. The dominant consideration will be whether the “source has so committed itself, financially and otherwise, to the use of a particular site for a particular facility that relocation is not an option and delay or substantial modification would be severely disruptive.” [S.Rep. No. 95-127, 95th Cong., 1st Sess. 32 (1977)]. 43 Fed.Reg. 26,388, 26,396 (1978). The current practice is not inconsistent with that used to measure Montana Power’s sub-stantiality of loss for Units 3 & 4. . The Supreme Court cases cited by Montana Power have dealt with a deviation from “long established” practice without a sufficient explanation of “the policy it is now pursuing,” Atchison, Topeka & Santa Fe Ry. v. Wichita Bd. of Trade, 412 U.S. 800, 805-06, 93 S.Ct. 2367, 2374, 37 L.Ed.2d 350 (1973); a question regarding which the “expertise” of the agency “is of limited value when the narrow legal issue [whether a cause of action should be implied] is one peculiarly reserved for judicial resolution,” Piper v. Chris-Craft Industries, 430 U.S. 1, 41 n. 27, 97 S.Ct. 926, 949 n. 27, 51 L.Ed.2d 124 (1977); and a case in which the “principle of according deference to administrative practice” did not apply because “the relevant statutory language” was not “unclear or susceptible of differing interpretations,” Shea v. Viaipando, 416 U.S. 251, 262 n. 11, 94 S.Ct. 1746, 1754 n. 11, 40 L.Ed.2d 120 (1974). Here, the EPA’s interpretation of its regulations that led to the Boardman and Bridger decisions was not a “long established” practice. The “policy it is now pursuing” is clear, and is not inconsistent with the Montana Power ruling. See note 25 supra. Unlike the court in Piper, we are dealing with an area in which the expertise of the EPA, in defining terms consistent with the policy of the Clean Air Act, is particularly helpful. Finally, the definition of “commence construction,” unfortunately, is certainly “unclear” and “susceptible of differing interpretations.” Our conclusion is consistent with earlier holdings of this court when we found that the weight to be given to an administrative regulation depends upon “its consistency with earlier and later pronouncements,” Martinez v. Marshall, 573 F.2d 555, 559-60 (9th Cir. 1978) (emphasis added), citing Morton v. Ruiz, 415 U.S. 199, 237, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974) and Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), and that the agency “may not depart sub silentio from its usual rules of decision to reach a different, unexplained result in a single case," NLRB v. Silver Bay Local Union No. 962, 498 F.2d 26, 29 (9th Cir. 1974) (emphasis added), citing NLRB v. International Union of Operating Engineers, Local 925, 460 F.2d 589, 604 (5th Cir. 1972). The facts in United States v. Union Oil Co., 549 F.2d 1271 (9th Cir.), cert. denied, 434 U.S. 930, 98 S.Ct. 418, 54 L.Ed.2d 291 (1977), are distinguishable. There the court refused to consider an agency interpretation of a statutory term primarily because the interpretation was written decades after the act was passed and therefore could not “reflect an agency view contemporaneous with the passage of the Act.” Id. at 1280 n. 19. Such was not the case here. . “Pre-amendment regulations” are those first promulgated in 1974 and in effect before enactment of the 1977 Amendments. Later changes in the regulations, made in response to the 1977 Amendments, should be distinguished carefully from the earlier ones. . There is no mention in the statute of satisfying the contractual obligation exemption by an irrevocable commitment to a particular site. . We express no opinion what the result would have been had we affirmed the district court’s finding that Montana Power was grandfathered under the pre-amendment regulations and yet found that Colstrip Units 3 & 4 were subject to PSD review and permitting under the 1977 Amendments. . The Tribe contends that this activity “consisted merely of removal, by strip mining, of a coal seam underlying the plant site and did not constitute a continuous program of actual construction of Units 3 and 4.” . The need for a permit under the Montana Clean Air Act, in addition to one under the ■ Siting Act, is discussed later. . Senator Jackson stated: This amendment would . . clarify the relationship between this legislative action and some litigation with respect to Col-strip units 3 and 4 in Montana. If the court finds that the activities undertaken by the owners satisfy the tests in clause (i) or (ii) on page 19, and the owners obtained permits required to be obtained to undertake those activities, then construction could proceed without waiting for additional EPA approval. 123 Cong.Rec. at S9455 (daily ed. June 10, 1977). . The senator commented that his amendment would not “prejudice the litigation that is pending. All the issues in the litigation are preserved.” 123 Cong.Rec. at S9455 (daily ed. June 10, 1977). Senator Muskie stated that he understood the amendment’s effect was “to neutralize the bill’s effect on [the Colstrip] judicial proceeding.” Id. at S9460. See also Senator McClure’s remarks, id. at S9460-61. . The Conference Report explained that the changes in Senator Jackson’s amendment constituted a slight modification of the “commenced construction” definition to clarify the intent that a source must have approval before construction may begin, and that any source that has begun construction without approval may not argue that construction activity alone (within the meaning of clauses (i) and (ii)) is adequate to meet the requirement of paragraph [2(A)].” H.R.Rep. No. 95-564, 95th Cong., 1st Sess. 153 (1977), U.S.Code Cong. & Admin.Laws 1977, p. 1533. . The company also attempts to support its interpretation by submitting letters from Senators Jackson and McClure written in November 1977, several months after these floor debates, to executives of the consortium members. We agree with the court in Epstein v. Resor, 296 F.Supp. 214 (N.D.Cal.1969), aff’d, 421 F.2d 930 (9th Cir.), cert. denied, 398 U.S. 965, 90 S.Ct. 2176, 26 L.Ed.2d 549 (1970): Statements made by legislators in debate can be a part of the legislative history which guides courts in statutory construction. See Bindczyck v. Finucane, 342 U.S. 76, 72 S.Ct. 130, 96 L.Ed. 100 (1951). On the other hand, statements made by a legislator after enactment of a statute and not a part of the records of the legislative body are entitled to little or no weight at all. National School of Aeronautics, Inc. v. United States, 142 F.Supp. 933, 135 Ct.Cl. 343 (1956). See also, United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947). Such statements are not offered by way of committee report and are not offered for response by other members of the law-making body. The intent which is helpful in interpreting a statute, is the intent of the legislature and not of one of its members. 296 F.Supp. at 216. Accord, Gardner & North Roofing & Siding Corp. v. Board of Governors, Federal Reserve System, 150 U.S.App.D.C. 329, 333, 464 F.2d 838, 842 (1972). See also 2A Sands, Sutherland Statutory Construction § 48.15 (4th ed. 1973). We do not consider the letters as part of the legislative history or entitled to any weight. The company asks that we consider a memorandum Senator Jackson enclosed with his letter. It described his intention in submitting his amendment and was apparently circulated to members of the Conference Committee. It is not, however, “a part of the records of the legislative body,” Epstein, 296 F.Supp. at 216, and we have no way to measure the response of Conference Committee members to the policy underlying the memorandum. It may be an accurate reflection of the senator’s intent but is not probative of congressional intent in passing the modified version. . Before Senator Jackson introduced his floor amendment, the Senate Report on the 1977 Amendments stated the purpose of the definition of commence is to make “[t]he date at which construction is said to have commenced . the time at which the owner or operator has obtained all necessary preconstruction approvals or permits required by Federal, State or local laws and has committed itself to a program of construction.” S.Rep. No. 95-127, 95th Cong., 1st Sess. 32 (1977). The EPA argues that this language, on its face, forecloses Montana Power’s interpretation of what permits it needed. In proposing his floor amendment, Senator Jackson described it as “a technical amendment . [that] is noncontroversial.” 123 Cong.Rec. at S9455 (daily ed. June 10, 1977). The EPA contends that if the amendment is understood as Montana Power proposes and Senator Jackson ostensibly intended, it would have substantially changed the purpose of the “commence” definition as described in the Senate Report and therefore could not have been merely a “technical amendment.” The EPA maintains that congressional understanding of the amendment was closer to the interpretation expressed by Senator Muskie, chairman of the subcommittee that drafted the 1977 Amendments and the principal sponsor, in response to the proposed amendment: On the basis which [Senator Jackson] has briefly outlined, I am prepared to accept the amendment. It is consistent with the intent of the committee in drafting this definition of “commenced construction.” The committee was interested in whether the owner or operator of a proposed facility had the precon-struction permits, certificates, or clearances which would have justified the sizable commitments necessary to meet the tests of a continuous program of physical construction or obligations which cannot be canceled without substantial loss. If an owner of a proposed facility can demonstrate that he had all the air quality-reiated clearance necessary to construct the facility, and was not making the commitments involved entirely at his own risk, before he could be assured that construction could legally take, then such physical construction or contractual obligations might be deemed to have commenced construction within the meaning of this definition. It should be added that for a contractual obligation to qualify a source as having commenced construction, the definition requires that the obligation be in connection with a continuous program of construction. Only continuous and significant site preparation work, such as major clearing or excavation or placement of unique facilities at the site should be considered a program of construction. All necessary air pollution, emissions, and air quality approvals or permits required for such activities would be required by this clarifying amendment. Id. . The amendment as originally proposed read: [T]he term “necessary preconstruction approvals or permits” means those permits or approvals, if any, required as a precondition to undertaking any activity relied upon by an owner or operator to satisfy the requirements in clauses (i) or (ii) . 123 Cong.Rec. at S9455 (daily ed. June 10, 1977). The Conference Committee version, which became § 169(2)(B), deleted the emphasized words, substituting “under” for the second italicized phrase. The EPA argues that the deletion of “if any” eliminated the possibility that no preconstruction approvals or permits would be necessary. Deletion of the second phrase, it maintains, removed any reference to, and thus the importance of, activities a source relied on in its PSD exemption claim. Although the Conference Committee Report indicated the deletions were only a “slight modification” of the Jackson amendment, EPA contends this description applies to Congress’ understanding of the original amendment and not to Senator Jackson’s intent. . In reporting on the Conference Committee bill, Representative Rogers stated: Mr. Speaker, in the State of Montana there is a proposed power plant project known as Colstrip 3 and 4. I have heard allegations that this project might receive special, favored treatment under the definition of “necessary preconstruction permits” in this conference bill. I can say that the “necessary preconstruction permit” definition in this bill will apply equally to all major emitting facilities through the country. The conference committee did not intend to hand out any special exceptions or to impose any special burdens. There was some concern expressed that this might interfere with litigation now pending with respect to the Colstrip project. It is not intended to have that effect. All the issues in that litigation are preserved. I assume there is a complicated factual situation involved to which I have not been exposed. This definition “necessary preconstruction permits” does not automatically decide whether the project is commenced or not. The effect is neutral. Personally, not being familiar with the particular facts, I do not know if the “necessary preconstruction permits” language in this bill will help or hurt Colstrip. But no special or favored treatment was intended by the conference committee. 123 Cong.Rec. at H8665 (daily ed. Aug. 4, 1977). . In addition to the first clause in § 70-817, Montana Power cites § 70-823 for support that the Siting Act preempts legislation dealing with the same concerns: This chapter supersedes other laws or regulations. If any provision of this chapter is in conflict with any other law of this state, or any rule or regulation promulgated thereunder, this chapter shall govern and control, and the other law, rule or regulation shall be deemed superseded for the purpose of this chapter. . Nor does § 70-823, providing that the Siting Act “supersedes other laws or regulations,” require a different conclusion. That section invalidates only those statutes “in conflict with” the Siting Act. The construction permit mandated by the state Clean Air Act might duplicate the permit requirement under the Siting Act, but does not “conflict with” it. . That the Board of Health concluded Montana Power still needed a construction permit under the state Clean Air Act despite any effect of the Siting Act appears in a condition of the Board’s certification of the Colstrip project to the Board of Natural Resources under the Siting Act: The certification with conditions herein set forth does not constitute a waiver of any of the requirements of the Clean Air Act, the Water Pollution Control Act or the implementation plan, including the necessity of obtaining a permit in accordance with the rules and regulations implemented under [the state Clean Air Act] Section 69-3911, RCM 1947. . We do not base our conclusion on the EPA’s allegation that the necessity of a state Clean Air Act permit had been fully litigated to Montana Power’s disadvantage, nor on the company’s alleged waiver of its argument precipitated by its acceptance of the state Clean Air Act permit.

Appalachian Power Co. v. Train

WIDENER, Circuit Judge: These cases come before us on petitions to review EPA’s regulations issued under § 316(b) of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251, § 1326(b). Section 316(b) and the regulations under review are discussed in our companion case decided today, Virginia Electric and Power Co. v. Train, 566 F.2d 446, in which we hold that the court of appeals, and not the district court, has jurisdiction to entertain these petitions under § 509(b)(1)(E) of the Act, 33 U.S.C. § 1369(b)(1)(E). The motion in these cases that we dismiss for want of our own jurisdiction is denied. To recapitulate briefly, § 316(b) provides that standards established pursuant to §§ 301 and 306 of the Act must require cooling water intake structures to reflect the best technology available for minimizing adverse environmental impact. EPA implemented § 316(b) by issuing regulations providing that, in determining the best available technology for cooling water intake structures, “[t]he information contained in the Development Document shall be considered.” 20 C.F.R. §§ 402.10^402.12. Petitioners in No. 76-1474 are 58 electric utility companies (the utilities), challenging the validity of the regulations on the ground that, in their promulgation, EPA violated the Administrative Procedure Act, 5 U.S.C. § 552(a)(1). A remand for republication in accordance with proper procedures is sought. Petitioner in No. 76-2057 is United States Steel Corp., which, while joining in the utilities’ brief, asserts that § 316(b) and the regulations issued thereunder may not be construed to apply to steel manufacturing facilities, but only to steam-electric generating plants. These questions, as well as the jurisdictional issue addressed in No. 76-2081, are preliminary to our review of the merits of EPA’s § 316(b) regulations. Briefing has not yet been had on the merits, and consequently we do not know what other grounds of invalidity will be asserted. Petitioners urge, and EPA accepts, a result that will have us defer review of the substance of the regulations and of the “information” contained in the Development Document until the regulations are actually applied in a discharge permit proceeding under § 402, 33 U.S.C. § 1342. This matter, too, will be addressed below. I By stipulation entered into on January 10,1977, it is agreed that the “information contained in the Development Document” is intended by EPA to be incorporated by reference into 40 C.F.R. Part 402. It is not EPA’s position that a word-for-word incorporation by reference of the Development Document was intended. In either case, it is petitioners’ position that the Development Document is not a validly issued part of the regulations, because it has not been published in the Federal Register, nor have the procedural requisites for incorporation by reference been complied with. With this position we agree, and hold that 40 C.F.R. § 402.12 is not enforceable for want of proper publication. The Administrative Procedure Act, 5 U.S.C. § 552(a)(1), provides: “Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register.” Our first inquiry is whether the APA requires publication of the challenged regulations. It is provided in 5 U.S.C. § 522(a)(1)(D) that, “(1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public— (D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency.” It is clear that 40 C.F.R. § 402.12 is a “substantive rule [. . .] of general applicability” required to be published in the Federal Register. As we stressed in our accompanying jurisdictional opinion, the § 316(b) regulations impose mandatory obligations upon members of the public and permit issuing authorities, all of whom, as required by the regulation, must now consider the information contained in the Development Document in designing and approving cooling water intake structures. Any agency regulation that so directly affects pre-existing legal rights or obligations, Lewis v. Weinberger, 415 F.Supp. 652 (D.N.Mex.1976), indeed that is “of such a nature that knowledge of it is needed to keep the outside interests informed of the agency’s requirements in respect to any subject within its competence,” is within the publication requirement. United States v. Hayes, 325 F.2d 307, 309 (4th Cir. 1963). As the substance of a regulation imposing specific obligations upon outside interests in mandatory terms, Piercy v. Tarr, 343 F.Supp. 1120 (N.D.Cal.1972), the information in the Development Document is required to be published in the Federal Register in its entirety, or, in the alternative, to be both reasonably available and incorporated by reference with the approval of the Director of the Federal Register. 5 U.S.C. § 522(a)(1). The Development Document was not itself published in the Federal Register, nor was the “information” contained therein. And it is undisputed that the approval of the Director of the Federal Register was not obtained for a proper incorporation by reference. This omission cannot be disregarded. The regulations of the Office of the Federal Register governing incorporation by reference contain numerous safeguards that must be complied with in order to obtain the director’s approval. And the legislative history of the APA indicates Congress’ desire to achieve a degree of centralized control over incorporations by reference: “Permission to incorporate material in the Federal Register by reference would have to be granted by the Director of the Federal Register, instead of permitting each agency head to decide what should be published.” H.R.Rep.No.1497, 89th Cong., 2d Sess. (1966), 2 U.S.Code Cong. & Admin. News, pp. 2418, 2424. In defense, EPA relies upon the principle, derived from the language of 5 U.S.C. § 552(a)(1), that an unpublished regulation, required to be published, may nevertheless be effective against persons with “actual and timely notice of the terms thereof.” In support of its contention that petitioners had actual notice of the information contained in the Development Document, EPA stresses the availability of the document, and the fact that petitioners had actual notice of the document’s existence. One difficulty with the agency’s position is that there is no indication in the record that the petitioners actually obtained notice of the information contained in the Development Document. But considering that they did, as might be inferred from oral argument, an insurmountable obstacle for EPA is the fact that nowhere does it appear exactly, or even approximately, what the term “information” is intended to comprise. The most that can be said of EPA’s position is that it establishes the ability of petitioners to have acquired actual notice of the pertinent information because of the availability of the document in which it is contained. This alone cannot avail the agency. The Administrative Procedure Act sharply distinguishes between the concepts of actual notice and reasonable availability. The former is in a sense a substitute for publication; one who has actual notice of an unpublished regulation is bound by it even though the regulation was required to be published. Rodriquez v. Swank, 318 F.Supp. 289 (D.Ill.1970) (3 judge court), aff’d. 403 U.S. 901, 91 S.Ct. 2202, 29 L.Ed.2d 677 (1971). But reasonable availability is not a substitute for publication; it is one of two conjunctive requirements which, if satisfied, will cause material to be deemed published. The other condition is that the material be incorporated by reference with the approval of the Director of the Federal Register. In short, the fact that the document was reasonably available does not suffice to establish that petitioners had actual notice of which materials in the Development Document were intended to be incorporated. Along the same line, and more readily apparent, is the EPA’s failure to comply with the regulations of the Office of the Federal Register, 1 C.F.R. Part 51, §§ 51.6 and 51.7. § 51.6(a) requires that the “language incorporating material by reference shall be as precise and complete as possible,” while § 51.7(a) provides that “each incorporation by reference shall include an identification and subject description of the matter incorporated, in terms as precise and useful as practicable within the limits of reasonable brevity.” The obvious meaning of those two sections is that an incorporation by reference must give one affected enough knowledge so that he may easily and certainly ascertain the conditions by which he is to be bound. The agency has failed to comply with either of the requirements. The language of the incorporation by reference is neither precise, nor complete, nor useful. The final Development Document contains two hundred seventy three pages. Included, for example, as “information” are 8 pages of 55 references in which are included 5 documents at least some of which were (perhaps. are) not currently available; whether or not the other 50 references should be considered “in the case by case evaluation of the best available technology,” as the 5 lesser available might be, is not disclosed. About the same may be said of the thirty-nine page topical bibliography containing the titles of dozens of publications and references to numerous patents. Further detailing from the Development Document is unnecessary; it is at once apparent that the regulation does not disclose what parts of the Development Document are “information” which “shall be considered” by those seeking and issuing permits to discharge. While we emphasize we do not fault EPA for its point source by point source application, we are of opinion it is going to have to devise a less uncertain method of advising those affected of the conditions by which they are to be bound. The utilities make other objections to the incorporation by reference and present them persuasively, but it is not necessary for us to pass on them here. We do note, however, that we have before cautioned EPA that it must comply with publication requirements of the EPA, and we now repeat the admonition. State of Maryland v. Environmental Protection Agency, 530 F.2d 215 (4th Cir. 1975). Should EPA republish the regulations in question, it should insure applicable statutes and regulations concerning publication are complied with. Because EPA failed to comply with the publication requirements of the Administrative Procedure Act as to incorporation by reference, its § 316(b) regulations are presently ineffective to impose obligations upon, or to adversely affect the petitioners. See Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974); W. G. Cosby Transfer & Storage Co. v. Froehlke, 480 F.2d 498 (4th Cir. 1973); State of Maryland v. Environmental Protection Agency, supra. The agency on remand may take further action with respect to the regulations should it be so advised. II We next turn to the contention of petitioner United States Steel Corporation that § 316(b) of the FWPCA, and hence the regulations implementing that section, apply only to steam-electric generating plants, not to steel mills. We see no merit in this position. There is nothing on the face of the statute that supports such a restrictive interpretation, nor is any reason offered why Congress would have intended to exclude the steel industry from the apparently all-inclusive statutory language. We do not attach persuasive significance to the remark of a single Congressman, heavily relied upon by United States Steel, that singles out steam-electric generating plants in discussing § 316(b). The statement does not imply that only steam-electric plants were intended to come within the ambit of § 316(b), and can easily be explained by the fact that such steam-electric plants account for 80% of the water withdrawn for cooling purposes by industrial point sources. While this fact may indicate that Congress had steam-electric plants in mind when § 316(b) was enacted, there is nothing to indicate the statute was to apply exclusively to them. The statutory language is not so limited, although it would have been a simple matter to do so. Another obstacle is encountered by United States Steel, to which we give weight, the deference that is ordinarily due the interpretation of a statute by the agency responsible for its day-to-day administration. Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). We therefore, reject United States Steel’s interpretation because it is contrary to the plain words of the Act, and finds no persuasive support in the legislative history. Ill Petitioners have argued that the proper time for review of the substantive validity of the § 316(b) regulations by this court is when the issuance of denial of a § 402 permit based upon those regulations is reviewed. EPA, in argument, was willing to accept such a result. Moreover, all parties agreed by stipulation that the proper time for review of the information contained in the Development Document is at the permit issuing stage. We conclude that a proper determination of when the EPA regulations should be reviewed cannot be made on the present state of the record. If the regulations are alleged to be invalid as written, we think they must be reviewed expeditiously under § 509(b)(1)(E), Appalachian Power Co. v. Train, 545 F.2d 1351, 1359-60, n. 22 (4th Cir. 1976); if the challenge is simply to the manner in which the regulations may be applied in a permit proceeding, then the proper time for review would be on appeal from the issuance or denial of a permit under § 509(b)(1)(F). Since the merits have not yet been briefed, pending resolution of the threshold controversies decided today, we do not know what the asserted grounds of invalidity will be. We have decided the preliminary issues today and will retain jurisdiction over these cases to hear any objections on the merits should the regulations be properly issued. Section 509(b)(1) of the Act requires applications for review of the administrator’s action in approving or promulgating any effluent or other limitation under § 301 or § 306 to be filed within 90 days of such approval or promulgation. Earlier versions of the House and Senate bills imposed 30 day bars. See e. g., H.R.Rep.No.92-911, 92d Cong., 2d Sess. (1972). These provisions demonstrate Congress’ determination to achieve prompt judicial review of effluent limitations or other limitations, approved by the Administrator, yet alleged to be invalid as written. See Peabody Coal Co. v. Train, 518 F.2d 940 (6th Cir. 1975). No purpose would be served by requiring prompt applications for review to be filed' if substantial delays in obtaining review ensued. If, on the other hand, objections to an EPA regulation actually come down to the manner in which it may be applied in issuing or denying a permit, judicial review in advance of the permit issuing stage would be speculative, and, therefore, premature. E. I. duPont de Nemours & Co. v. Train, 541 F. 2d 1018, 1028 (4th Cir. 1976), aff’d in part, rev’d in part, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977); Natural Resources Defense Council v. EPA, 537 F.2d 642, 647 (2d Cir. 1976). In such a case, the policy of obtaining prompt review of § 301 or § 306 limitations alleged to be generally invalid does not apply. The regulation as applied in a particular permit proceeding may be reviewed under § 509(b)(1)(F), which authorizes courts of appeals to review action of the Administrator in issuing or denying a permit. Of course, the 90 day statute of limitations would not begin to run until the permit determination was made. Until we know which of these situations is applicable, we should not decide the issue. IY Two other matters deserve brief attention. Petitioners ask, if we find want of proper publication to have made the regulation unenforceable, that we review the merits and then remand. We decline so to do, being of opinion this would be an advisory opinion. U.S.Constitution, Art. III. We also decline to require EPA to publish as a regulation in the Federal Register and the Code of Federal Regulations the stipulation found here in footnote 4. Since we remand the regulation, there is nothing for us to act on. CONCLUSION In ease No. 76-1474, and that part of case No. 76-2057 in which United States Steel joins the utilities, 40 C.F.R. § 402.12 is remanded to the agency. In that part of case No. 76-2057 in which United States Steel seeks a holding it is not covered by § 316(b) of the statute, 33 U.S.C. § 1326(b), the relief prayed for is denied. We retain jurisdiction in case No. 76-1474 and only that part of case No. 76-2057 in which United States Steel joins the utilities in case No. 76-1474. The cases are removed from the active docket of the court. . The regulations were also issued under the authority of §§ 301, 306, and 501(a). . Hereafter referred to as the Act, or the FWPCA. . Hereafter referred to as the APA. . The January 10, 1977 stipulation reads in pertinent part as follows: “1. That the Administrator construes the regulations of 40 C.F.R. § 402.12 to incorporate by reference as part of the regulations of 40 C.F.R. Chapter I. Subchapter N, Part 402 (41 Fed.Reg. 17387-90; April 26, 1976) the information contained in the Development Document, as defined at 40 C.F.R. § 402.-11(f). “2. That, under 40 C.F.R. Part 402, the information contained in the Development Document is set forth as general guidance for the NPDES discharge permit issuing authority in determining, on a case-by-case basis, the location, design, capacity and construction of a cooling water intake structure reflecting the best technology available for minimizing adverse environmental impact. “3. Therefore, in any proceeding for issuance, denial, modification, or specification of an NPDES permit or any condition thereof, any party thereto may challenge any relevant information contained in the Development Document and the permit issuing authority’s proposed application thereof in determining cooling water intake structure requirements for the subject source. “4. Therefore, it is neither necessary nor appropriate in the instant proceeding to review the information contained in the Development Document. “5. The agreement of U. S. Steel to this stipulation in no way constitutes an admission by U. S. Steel that Section 316(b) applies to the steel companies.” . The regulations of the Office of the Federal Register pertaining to incorporation by reference are found in 1 C.F.R. Part 51. Section 51.2 requires that to be eligible for incorporation by reference, material must conform to the policy expressed in § 51.1, and be in the nature of published data, criteria, standards, specifications, techniques, etc., or other published information reasonably available to those affected. Section 51.6 requires that the language incorporating material by reference be as precise and complete as possible. Section 51.7 requires that each incorporation by reference include an identification and subject description of the matter incorporated, in terms as precise and as useful as practicable within the limits of reasonable brevity. Also, a brief description must be included to inform the user of his potential need to refer to the material incorporated. Finally, section 51.4 states that the approval of the Director for incorporation by reference shall only be granted when the material is eligible, its incorporation will substantially reduce the volume of material published in the Federal Register, the material is sufficiently available to afford fairness and uniformity, and the incorporating document is drafted and submitted for publication in accordance with the applicable regulations. . EPA’s factual support for the “actual notice” of petitioners, stated in its brief, follows: “While not published and distributed concurrently with the publication of the Section 316(b) regulations, the Development Document was immediately available for inspection and copying, when the regulations were published, in EPA’s Office of Public Information, and the Development Document was itself printed, bound, and distributed shortly after the 316(b) regulations were promulgated. Petitioners had actual and timely knowledge of the information in the Development Document.” As we demonstrated below, the transition from the first to the second quoted sentence is something of a non-sequitur. Availability of a document is not the equivalent of actual notice of which parts of it are expected to be complied with by those affected. . The publication requirement is further distinguished from the availability of incorporated material by the contrast between subsections (a)(1) and (a)(2) of 5 U.S.C. § 552. Subsection (a)(2) enumerates a different class of agency actions than those required to be published under subsection (a)(1). The class enumerated in (a)(2) need not be published in the Federal Register, but need only be made available for public inspection and copying. . The remand by the Supreme Court, in 431 U.S. 99, 97 S.Ct. 1635, 52 L.Ed.2d 166 (1977), for consideration of mootness had no effect on the point in the Maryland case for which it is cited. . The remark, by Representative Clausen, reads, “Section 316(b) requires the location, design, construction and capacity of cooling water intake structures of steam-electric generating plants to reflect the best technology for minimizing any adverse environmental impact.” . Such review is authorized by § 509(b)(1)(F) of the Act, 33 U.S.C. § 1369(b)(1)(F). . At the end of footnote 22 of Appalachian Power, 545 F.2d at 1360, belong the following sentences, printed as the first full paragraph of page 1359: “Thus, it would appear that, unlike the case in duPont, the administration of these regulations is not a matter of speculation. As such, they are properly the subject of review at this time.” The inclusion of those sentences in the body of the Appalachian opinion is an error in the reporter. . A question not presently before us, but which we also have taken into account in declining to delve any further than required into the maze of the jurisdictional aspects of the statute, is that of a permit seeker following application to discharge in a State which has qualified to issue discharge permits under §§ 402(a)(5) and 402(b) of the statute, 33 U.S.C. §§ 1342(a)(5) and 1342(b). While § 509(b)(1)(F), 33 U.S.C. § 1369(b)(1)(F) grants review in the courts of appeals from the act of the EPA Administrator in issuing or denying a permit, at least one court has held it has no jurisdiction on the application of an “interested person” if the act in issuing the permit is taken by a State. Mianas River Preservation Committee v. Administrator, E. P. A., 541 F.2d 899 (2nd Cir. 1976). Quaere: what is the position of the permit seeker with respect to judicial review?

United States Steel Corp. v. Train

TONE, Circuit Judge. These consolidated cases bring before us an Environmental Protection Agency (EPA) order granting a discharge permit under the Federal Water Pollution Control Act Amendments of 1972 and a related District Court judgment. In No. 76-1616, United States Steel Corporation’s petition for review of EPA’s order granting a National Pollutant Discharge Elimination System (NPDES) permit for the company’s Gary Works pursuant to § 402 of the Act, 33 U.S.C. § 1342, 86 Stat. 880, the company challenges the conditions imposed by the permit. No. 76-1425 is an appeal from a District Court’s dismissal of a complaint which the company filed while the administrative permit proceeding was still in progress, seeking review of the administrative law judge’s refusal to consider certain issues in that proceeding. I. The Statute The cornerstone of the Act’s scheme for cleaning up the nation’s waters is § 301(a)’s prohibition against “the discharge of any pollutant by any person” except as specifically permitted by administrative action taken pursuant to specified sections of the Act. An existing source such as the Gary Works may obtain permission to discharge pollutants by applying for an NPDES permit under § 402. EPA administers the permit program in each state unless and until the state takes over that function, which Indiana did not do in time to process the Gary Works application. A permit, which is issued upon application and after opportunity for a public hearing, states the pollutants and amounts thereof that may be discharged at each of the plant’s outfalls, and imposes conditions upon those discharges. A permit thus transforms “generally applicable effluent limitations and other standards — including those based on water quality — into obligations (including a timetable for compliance) of the individual dis-charger.” EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 205, 96 S.Ct. 2022, 2025, 48 L.Ed.2d 578 (1976). The Act provides for two kinds of restrictions on the discharge of pollutants. First, federal, technology-based effluent limitations are to be established in two stages, one set to be met by July 1, 1977, and to be based upon “the best practicable control technology currently available” (which we sometimes refer to as “1977 technology” or “BPT”), and the other to be met by July 1, 1983, and to be based on “the best available technology economically achievable.” Section 301(b). Second, the states are allowed to impose more stringent limitations, including water quality standards, treatment standards, or schedules of compliance. Sections 301(b)(1)(C) and 510. See also EPA v. California ex rel. State Water Resources Control Board, supra, 426 U.S. at 219, 96 S.Ct. 2022. Congress thus has chosen not to preempt state regulation when the state has decided to force its industry to create new and more effective pollution-control technology. These state limitations must also be met by July 1, 1977, § 301(b)(1)(C), and, like the federal limitations, are implemented by conditions which are included in NPDES permits. In reviewing the U.S. Steel permit we are primarily concerned with the 1977 state and federal limitations. Except with respect to a final limitation on blast-furnace discharges, the additional federal limitations that become effective July 1, 1983 are not involved in this proceeding. II. The Facts and Prior Proceedings The Plant U.S. Steel’s Gary Works occupies 3700 acres on the southern shore of Lake Michigan. An integrated steel mill, Gary Works produces coke, iron, steel, and primary and finished steel shapes. The plant draws water from Lake Michigan and each day discharges up to 775 million gallons of polluted water into the lake and into the Grand Calumet River, which flows into the lake. The discharges are made through five outfalls into the lake and 14 into the river. Each day the 500 million gallons discharged into the river include an average of 180 pounds of phosphorus, 325 pounds of phenol, 3100 pounds of cyanide, 3400 pounds of flourides, 5100 pounds of ammonia, 82,-000 pounds of chlorides, and 180,000 pounds of sulphates. These pollutants eventually flow into lower Lake Michigan. The EPA Permit Proceeding U.S. Steel’s initial application for a discharge permit for its Gary Works was made in 1971, before the adoption of the Federal Water Pollution Control Act Amendments of 1972. That application was submitted to the Army Corps of Engineers, which was charged with the responsibility of issuing permits under the Refuse Act. The FWPCA transferred permit authority from the Corps of Engineers to the Administrator of EPA. As provided in § 402(a)(5) of that Act, U.S. Steel’s application was treated as an NPDES permit application. EPA initially issued a permit for the Gary Works in October 1974, after having published notice of its proposed action. The permit contained effluent limitations, monitoring requirements, and additional conditions, together with a compliance schedule. U.S. Steel did not accept the permit but requested an administrative hearing pursuant to EPA regulations, 40 C.F.R. § 125.36. In its request, the company proposed permit conditions which it contended satisfied the Act, some of which would have allowed it to increase the amount of pollutants in its discharges. After the hearing and a limited remand ordered by EPA, the Regional Administrator substantially approved the conditions contained in the permit, which had been formulated by the Regional Enforcement Division. U.S. Steel appealed, pursuant to 40 C.F.R. § 125.36(n)(l), to the Administrator, who denied review. The permit was reissued by EPA on June 25, 1976, with a modified compliance schedule. U.S. Steel then filed its petition for review in this court. The Permit The permit imposes technology-based limitations governing pH, total suspended solids (TSS), and oil and grease at each individual outfall. These limitations are designed to reflect the level of pollutant discharges remaining despite installation of 1977, or best practicable, technology. Throughout the course of the permit proceeding, the parties have agreed that BPT is currently being used by U.S. Steel at all but one outfall. Therefore, the only dispute as to the technology-based limitations on those outfalls is whether the effluent limits established by EPA properly reflect BPT operations. The one outfall that the parties do not agree on is the iron-making blast-furnace outfall, # 017, which is U.S. Steel’s major process-water outfall and the largest single source of pollution at the plant. The permit limitations on TSS at that outfall can be met only by installing a blast-furnace recycling system, which EPA asserts, and U.S. Steel denies, is BPT. Other permit limitations, imposed because they are required by Indiana regulations, govern six chemicals, viz., ammonia, cyanide, phenol, chloride, sulphate, and fluoride. These limitations apply to the plant’s river outfalls as a group and not to individual outfalls. There are also thermal limitations based on state water quality standards. For all but the blast-furnace outfall, there are only “initial” limitations, which are effective until June 30, 1977, and “final” limitations, which apply from July 1, 1977 until the expiration of the permit on October 31, 1979. The initial limitations govern only pH, TSS, and oil and grease, except that at two outfalls, # 007 and # 017, ammonia, cyanide, and phenol are also covered. The final limitations govern temperature, pH, TSS, and oil and grease for all 19 outfalls and ammonia and other chemicals for the 14 river outfalls, including the blast-furnace outfall. For that outfall the permit also contains an intermediate step, “interim” limitations on total suspended solids, which are effective between July 1, 1977 and June 30, 1979, with the final limitations on TSS becoming effective July 1,1979. Schedules of compliance are established to enforce these deadlines, and U.S. Steel is required to monitor its discharges in order to present proof of its compliance. The permit also restricts U.S. Steel’s discharges of acid wastes to a deep waste-injection well to their present level. The company is required to monitor these discharges also and to submit data relating to the deep well and the performance of treat-ability studies of the deep-well wastes. The Action in the District Court At the EPA administrative hearing, U.S. Steel attempted to challenge the validity and application of (1) the state water quality standards set out in Indiana regulations SPC 4R and SPC 7R-2; and (2) certain NPDES regulations contained in 40 C.F.R. part 125. The administrative law judge determined that he lacked jurisdiction to decide these matters and therefore refused to consider them at the hearing. U.S. Steel then filed an action in the United States District Court for the Northern District of Illinois, seeking declaratory and injunctive relief with respect to the issues the administrative law judge had declined to hear. Basing jurisdiction on 28 U.S.C. §§ 1331, 2201, 2202 and the Administrative Procedure Act, 5 U.S.C. § 500, et seq., U.S. Steel asked for the following relief: (1) An order requiring EPA to determine the validity and applicability of Indiana’s water quality standards or, in the alternative, review of those issues by the District Court. (2) An order requiring EPA to determine the validity of certain “substantive” NPDES regulations or, in the alternative, District Court review of those regulations. (3) Review by the District Court of certain NPDES regulations pertaining to permit procedures. U.S. Steel moved for a preliminary injunction to stay the administrative hearing pending the District Court’s decision on the merits. Following denial of the motion, an appeal was taken to this court. An application for stay of the administrative proceeding was denied, and after the administrative hearing was completed the appeal was dismissed as moot. Thereafter the District Court, on EPA’s motion, dismissed the complaint as failing to state a claim on which relief could be granted. The court explained its decision in an unreported memorandum, pointing out the inappropriateness of judicial interruption of an ongoing administrative process in the absence of irreparable injury or plain deprivation of constitutional right, the availability of judicial review of the administrative process in accordance with a specific statutory provision, and the general policy of avoiding piecemeal judicial review. U.S. Steel appeals from that judgment of dismissal. III. Procedural Issues There are several procedural issues to be considered in each appeal before reaching the validity of the permit conditions. A. The Petition for Review: No. 76-1616 (1) Applicability of Administrative Procedure Act The FWPCA requires the Administrator to provide an “opportunity for public hearing” before issuing a permit, § 402(a)(1). The agency has issued regulations providing for public hearings, held at the discretion of the Regional Administrator, 40 C.F.R. § 125.34, and separate adjudicatory hearings, held at the request of “any interested person” if the Regional Administrator approves, 40 C.F.R. § 125.36. Only an adjudicatory hearing was held on the permit now before us. The FWPCA does not prescribe the procedures to be followed by the agency at these hearings. The parties disagree as to the applicability of the Administrative Procedure Act. EPA has submitted a supplemental brief arguing at length that the adjudication provisions of that Act do not apply and that the only constraint on the agency’s procedure is the due process clause. The argument is that these sections, 5 U.S.C. § 554, and also 5 U.S.C. §§ 556 and 557, both of which are triggered by § 554, apply only to an “adjudication required by statute to be determined on the record after opportunity for agency hearing”; and § 402 of the FWPCA requires only “opportunity for public hearing” and does not contain the words “on the record.” The absence of the words “on the record” is not conclusive, however. See Phillips Petroleum Co. v. FPC, 475 F.2d 842, 851 (10th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102 (1974). Section 509(b)(1) of the FWPCA subjects proceedings under specified sections of the Act to judicial review in a court of appeals. Of the enumerated sections, only § 307, providing for toxic and pretreatment effluent standards, contains the words “on the record.” Section 307(a)(2). The presence of these words in one section and their absence from the others is outweighed, however, by other considerations. It seems improbable that Congress would have contemplated that judicial review of proceedings under all the other sections enumerated in § 509(b)(1) would be conducted without a written record. Also pertinent is the language chosen by Congress in § 509(c) making that subsection applicable to “any judicial proceeding” under § 509(b) in which the determination under review is “required to be made on the record after notice and opportunity for hearing.” This would have been an unusual way of singling out § 307 from all the sections listed in § 509(b). U.S. Steel thus seems to have the better of the argument when it contends that §§ 554, 556, and 557 of the APA are applicable to NPDES permit proceedings. Sections 556 and 557 are applicable for another reason: § 558(c) of the APA provides, independently of § 554 of that Act, that “[w]hen application is made for a license required by law” the agency shall hold proceedings which shall be “conducted in accordance with sections 556 and 557.” Because this is a license application proceeding, §§ 556 and 557 apply whether or not § 554 does. In addition, § 706(2)(E) of the APA makes the case subject to the “substantial evidence” standard of judicial review. The agency also argues that Congress must not have intended the APA to apply to NPDES permit proceedings under the FWPCA because the sheer number of those proceedings would make it impossible to observe the adjudicatory hearing requirements of the APA. On their face, §§ 556 and 557 apply to NPDES permit proceedings. We are not free to ignore the statutory words, which Congress has left unaltered, on grounds of expediency. And while the applicability of § 554 may not be as clear, the impossibility argument is not persuasive in any event. EPA has demonstrated in this case that in the relatively small percentage of cases in which applicants for NPDES permits demand hearings, it is not unduly burdensome for the agency to conduct those hearings in compliance with the adjudication provisions of the APA. (2) Challenges to EPA Procedural Regulations (a) Burden of Proof U.S. Steel argues that the EPA regulation which puts the burden of proof on the applicant, 40 C.F.R. § 125.36(i)(l), violates 5 U.S.C. § 556(d), which requires “the proponent of a rule or order” to bear the burden of proof. The short answer to this contention is that U.S. Steel, as the applicant for a permit without which it would be forbidden by law to discharge pollutants, is the proponent. See Appalachian Power Co. v. Train, 545 F.2d 1351,1358 (4th Cir. 1976). A related argument is that because the parties were required to submit their evidence simultaneously in writing prior to the hearing, U.S. Steel was “unable to properly prepare to respond to the Government’s evidence.” Inasmuch as U.S. Steel properly bore the burden of proof, it seems to us that, if anything, it benefited by this procedure. In any event, § 556(d) expressly provides “for the submission of all or part of the evidence in written form” when an agency is considering an application for an initial license, as it was here, and the company neither showed that it was denied the right to offer evidence in rebuttal nor pointed to any prejudice that it suffered. (b) Failure To Require Hearing Officer To Make Initial Decision U.S. Steel attacks the EPA regulation which requires the Regional Administrator rather than the hearing officer to render the initial decision. 40 C.F.R. § 125.-36(7 )(1). This provision is said to violate 5 U.S.C. §§ 554(d) and 557(b). Section 554(d)(A), however, specifically exempts “applications for initial licenses” from the requirement that an agency employee who presides at the hearing make the recommended or initial decision. And § 557(b) states that the hearing officer shall decide the case “unless the agency requires, either in specific cases or by general rule, the entire record to be certified to it for decision.” The challenged regulation is such a general rule and is thus authorized by the statute. Moreover, § 557(b)(1) specifically provides that, in “determining applications for initial licenses,” the agency itself may issue a tentative decision. (c) Considerations Outside the Record U.S. Steel asserts that the following EPA regulation violates 5 U.S.C. § 556(e): “The Administrator shall decide the matters under review on the basis of the record presented and any other consideration he deems relevant.” Section 556(e) provides that the “transcript of testimony and exhibits, together with all papers and requests filed in the proceeding, constitutes the exclusive record for decision . .” While the regulation might have been more artfully worded, we believe it simply permits the Administrator to use his expertise in making decisions. We do not read it as authorizing him to base his decision on evidence outside the record. In any event, the Administrator did not state in this case that he was basing his decision to deny review on any matter outside the record, and we will not presume that he did so. Cf. 40 C.F.R. § 125.36(n)(9)(ii). (3) Agency Refusal To Consider Validity of Procedural Regulations U.S. Steel complains that it should have been allowed, at the administrative hearing, to challenge the EPA procedural regulations governing the permit proceeding. EPA responds that the agency was not required to consider these questions, inasmuch as it had already indicated its view of the matter by adopting the regulations. We think U.S. Steel cannot complain, so long as the validity of the regulations is subject to review by this court. We have already considered and rejected U.S. Steel’s challenges to specific regulations. U.S. Steel also asserts that the regulations in their entirety “are unlawful in that said regulations were improperly promulgated without notice or opportunity for comment. 5 U.S.C. § 553; ‘Notice of Proposed Rulemaking,’ 30 Fed.Reg.No. 7, January 11,1973.” Without more, we are hardly in a position to evaluate this conclusory argument, to which EPA has not responded. Moreover, U.S. Steel’s failure to show that it was prejudiced by the regulations makes further consideration of this argument unnecessary. (4) Agency Refusal To Consider Validity of Indiana Water Quality Standards The administrative law judge held that he was without jurisdiction to consider the validity of the Indiana water quality standards upon which certain limitations in the permit were based, a position the Administrator sustained. U.S. Steel contends that Indiana provides no judicial review of the validity of the standards.'and that due process therefore required the Administrator to determine the validity of those standards. Under § 402(a)(1) of the FWPCA, the Administrator must condition the NPDES permit upon the discharger’s meeting “all applicable requirements under sections 301,” et a1. Section 301(b)(1)(C) requires compliance by July 1, 1977 with “any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedules of compliance, established pursuant to any State law or regulations (under authority preserved by section 510) Section 510 preserves the right of any state to impose limitations more stringent than the federal limitations under the Act. Because the Administrator is required by the Act to include in the permit any more stringent state limitations, including those necessary to meet state water quality standards, and is given no authority to set aside or modify those limitations in a permit proceeding, he correctly ruled that he had no authority to consider challenges to the validity of the state water quality standards in such a proceeding. The Administrator’s only authority to pass on state water quality standards is conferred by § 303 of the Act, which empowers him to determine whether the standard “meets” or is “consistent with the applicable requirements of this Act.” In accordance with that provision he has, in a separate proceeding, considered and approved the applicable Indiana water quality standards. 40 C.F.R. § 120.10. Authority to approve or disapprove a state’s identification of polluted waters and calculation of total maximum daily loads is conferred on the Administrator by § 303(d)(2). These determinations are reviewable in an action in the district court under the judicial review provisions of the APA. See note 18, infra. Assuming that the state standards are consistent with the Act and are not reviewable in the state courts, as U.S. Steel contends they are not, the only remaining possible challenge is a federal action against the state officers responsible for their enforcement alleging deprivation of a federal constitutional right. See Part III, B(l), infra. U.S. Steel relies on Consolidation Coal Co. v. EPA, 537 F.2d 1236 (4th Cir. 1976), which held that when there was no available state procedure for obtaining a hearing on the appropriateness of a state-originated durational limit which was to be included in an NPDES permit pursuant to a § 401(d) certification, due process required that EPA hold such a hearing prior to taking any final administrative action. To the extent that Consolidation Coal may be inconsistent with the views we have expressed, we decline to follow it. As we have already noted, however, a hearing on the validity of the state standards under the United States Constitution would be available in an action against the state officers in the federal district court. That hearing may encompass the issue of whether the procedure by which the state adopted its regulations offended due process. (5) Procedural and Evidentiary Rulings We cannot consider vague contentions that there were unspecified “individual errors in procedure which violated either the Administrative Procedure Act . or the . . regulations ... or both.” U.S. Steel’s complaint regarding the Regional Administrator’s alleged “wholesale verbatim adoption of most of the Staff’s, proposed findings” is not enough to permit us to conclude that he did not independently review the evidence, nor is its charge that he “complete[ly] fail[ed] to acknowledge contrary evidence.” Nor can we review unspecified “clearly erroneous findings of fact and conclusions of law, and the deprivation of Petitioner’s right to due process of law.” Equally vague is the allegation of “a course of procedure wherein one party is held strictly accountable to the rules while its opponents are given great leeway and where procedural rules are waived for one side but strictly enforced for the other.” Similarly unspecific are the attacks upon the testimony of the agency’s experts as containing opinions they “were either not qualified to give or which were without foundation,” or as “unsworn in large part,” hearsay, or “legal conclusions.” Even apart from the wide latitude allowed an administrative agency in the receipt of evidence, it is impossible for a court to consider general allegations such as these. Challenges to specific conditions of the permit are considered below. B. The Appeal from the District Court: No. 76-1425 The appeal from the judgment of the District Court dismissing U.S. Steel’s action also raises a series of procedural questions, some of which are related to those presented in the petition for review. We deal with these questions in the order in which they are alleged in the three counts of the complaint. (1) Validity of Indiana Water Quality Standards (Count I) U.S. Steel argues that the District Court should have required EPA to consider the constitutionality of the Indiana water quality standards. For the reasons stated above, the agency had no authority to consider the validity of those standards, and this relief was therefore properly denied by the District Court. Nor could the District Court have properly granted U.S. Steel’s alternative request that the court itself review the validity of those standards under the United States Constitution. As we have seen, the standards are state, not federal, regulations, and the Administrator was required by the Act to include in the permit any discharge limitations necessary to meet them. While these state regulations, like any other state regulation or statute, can be challenged on federal constitutional grounds in a federal action against the appropriate state officials in a district in which jurisdiction and venue are proper, this was not such an action. The District Court in this case, however, did have authority to review the Administrator’s approval, prior to the permit proceeding, of the Indiana water quality standards as consistent with the FWPCA. EPA argues that the complaint did not seek this relief, and we agree. Apart from the mere conclusory assertion that the Indiana standards are contrary to the purposes and provisions of the FWPCA, the complaint did not allege any incompatibility between the state standards and the Act. This claim was therefore insufficient in law. (2) Validity of EPA Regulations (Counts II and III) Also properly dismissed was U.S. Steel’s claim that the District Court should either have itself held invalid the NPDES substantive and procedural regulations, or ordered EPA to consider their validity "in the permit proceeding. As we have already held, this court is the proper forum for challenging those regulations on review of EPA’s permit order. We have considered the challenges asserted and found them to be without merit. We therefore affirm the judgment of the District Court in No. 76-1425, dismissing U.S. Steel’s complaint. We now return to the petition for review, No. 76-1616, and consider U.S. Steel’s challenges to specific conditions of the permit. IV. Permit Conditions A. Limitations Required by State Law or Regulation The limitations on the six chemicals, ammonia, cyanide, phenol, chloride, sulphate and fluoride, and the thermal limitations are, as we have seen, state limitations adopted by Indiana pursuant to its plenary power preserved by § 510. They were included in the permit because § 402(a)(1) required the Administrator to condition the discharge permit on compliance with “all applicable requirements” of, inter alia, § 301, and § 301(b)(1)(C) requires dischargers to achieve, in addition to the technology-based effluent limitations determined by EPA, “any more stringent limitation, including those necessary to meet water quality standards . . . established pursuant to any State law or regulation (under authority preserved by Section 510) it (1) Chemical Limitations The limitations for the six chemicals are aggregate weight limits on the total discharges that may be made from all the outfalls at which those chemicals are discharged, which are the river outfalls. The allowable discharges are not allocated among the individual outfalls. Compliance, however, is determined by monitoring at each outfall. In challenging these limitations, U.S. Steel argues that the water quality standards on which certain limitations are based are invalid. As we have held in Parts III, A(4) and III, B(l), supra, however, those standards are not subject to review in either of the appeals presently before us. The company also argues that the limitations on the six chemicals are impossible to achieve with present technology. Even if this is true, it does not follow that they are invalid. It is clear from §§ 301 and 510 of the Act, and the legislative history, that the states are free to force technology Although the Indiana Board considered technology in setting some of these limitations, it was not required to do so. Only the federal effluent limitations must be technology-based, and they represent the minimum level of pollution reduction required by the Act. See Leg. Hist., at 1468. If the states wish to achieve better water quality, they may, even at the cost of economic and social dislocations caused by plant closings. See Leg. Hist., at 231,1282. Cf. Union Electric Co. v. EPA, 427 U.S. 246, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976). Thus we reject this argument as well. U.S. Steel also asserts in conclusory terms that the limitations on the six chemicals are not based upon substantial evidence and are arbitrary. If this is intended as an argument that the allocations are more stringent than would be necessary to achieve the water quality standards, it fails for two reasons: First, notwithstanding EPA’s overgenerous concession to the contrary, this necessity argument is not available in this proceeding. Section 301(b)(1)(C), the ultimate source of the Administrator’s obligation to put the state limitations in the permit, is not limited to restrictions based on water quality standards but extends to “any more stringent limitation” the state adopts pursuant to the authority preserved by § 510. As we read the Act, the Administrator had no more authority to inquire into whether the limitations adopted by the state were necessary to achieve the water quality standards than he did to inquire into the validity of those standards. Second, even if a necessity argument could be entertained in this proceeding, U.S. Steel has presented its objections in such a general and conclusory way that we doubt such an argument was intended. Assertions that the limitations are “not based upon substantial evidence” and “not supported by accurate data and analysis and sound scientific principles,” without elaboration or discussion of the information in the record which is pertinent to each limitation, cannot be considered. Ours is an adversary, not an inquisitorial, system. Neither time nor expertise is available to us for searching a voluminous record for error in response to such general assertions as these. The fact that the entire record has not even been brought before us, and we therefore could not exclude the possibility of record support for a given limitation in data which were not made available, leads us to believe that these arguments were included in the brief as rhetoric rather than as a serious challenge to the record support for each limitation. We accordingly overrule the objections to the limitations on the six chemicals. (2) Thermal Limitations The permit also establishes limitations, effective July 1, 1977, on the temperature of the adjacent receiving waters of Lake Michigan and the Grand Calumet River after admixture of the discharges. Monitoring requirements of the permit enable EPA to measure U.S. Steel’s compliance with the thermal limitations. The limits are taken directly from the Indiana water quality standards applicable to the two bodies of water. The permit offers U.S. Steel an alternative to compliance with these limitations as authorized by § 316(a) of the Act. Under that section, the company may attempt to “demonstrate to the satisfaction of the Administrator . . . that [the] effluent limitation[s] proposed for the control of the thermal component of [its] discharge . . . [are] more stringent than necessary to assure the projection [sic] and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on [Lake Michigan and/or the Grand Calumet River].” If the company’s showing is successful, EPA may set less stringent thermal limitations, provided they still meet the aquatic-life requirements. U.S. Steel challenges both the thermal limitations and the thermal demonstration provisions of the permit. U.S. Steel argues that “the thermal limitations in this permit are vague, arbitrary and unreasonable.” As effluent limitations based directly on state water quality standards and included in the permit pursuant to § 301(b)(1)(C), however, the thermal limitations are not open to substantive challenge in this proceeding. The company’s related claim that compliance with the limits cannot be reliably determined must be rejected insofar as it is an objection to the permit’s use of temperature as the measurement scale for determining compliance with thermal water quality standards. We know of no alternative measurement scale. And, although thermal monitoring is necessarily imprecise, it is possible to determine whether a discharger is in substantial compliance with thermal effluent limitations. The thermal limitations in the permit are therefore upheld. U.S. Steel also objects to the “thermal discharge demonstration” provision of the permit, included pursuant to § 316(a), which offers the company an opportunity to demonstrate that the thermal limitations imposed by the permit are more stringent than necessary to protect aquatic life. First, U.S. Steel argues that it is unfair to make such a demonstration “the sole method by which a permittee can obtain relief from improper thermal limitations, [especially] . . . where the permittee is attacking the validity of the thermal limitations themselves.” We have held, however, that U.S. Steel cannot challenge the validity of the thermal limitations in this proceeding. The fairness argument must be addressed to the Congress, not this court. Second, the company argues that the permit improperly applied § 316(a) and its implementing regulations, 40 C.F.R. part 122. See Appalachian Power Co. v. Train, supra, 545 F.2d at 1371-1372. The argument that the Grand Calumet River would not exist, much less contain a balanced aquatic life, without U.S. Steel’s discharges from Gary Works goes to the validity of the thermal limitations themselves, and is therefore not available in this proceeding. The argument that the study requirements are too vague to enable the company to comply with them does not persuade us. Accordingly, the thermal discharge demonstration provision is upheld. B. Technology-Based Effluent Limitations (1) At All Outfalls Except # 017 U.S. Steel attacks all the effluent limitations indiscriminately as arbitrary and unsupported by substantial evidence. Its broadside argument, if read literally, is that no limitation for any outfall is supported by substantial evidence and all are arbitrary. It should first be noted that an examination of the Regional Administrator’s decision shows that U.S. Steel did not object before the agency to many of the limitations. Moreover, U.S. Steel’s brief does not particularize its claim with respect to any outfall or limitation. As we said in considering the challenge to the limitations on discharges of the six chemicals, a court will not, in response to such a general assertion of error, sift a vast administrative record, only a portion of which has even been brought before it by the parties, for evidence arguably bearing on each limitation. In view of U.S. Steel’s failure to particularize, it is not surprising that EPA’s brief does not address itself to individual limitations. This means, however, that we have no guidance from either side in analyzing the evidence relating to particular limitations. We would forfeit the benefits of the adversary system if we undertook the independent and unassisted search for error which would be necessary to determine the accuracy of U.S. Steel’s general assertion of arbitrariness and lack of record support. This court will consider a challenge to an effluent limitation in an NPDES permit only if our attention is directed by the petitioner’s brief to the specific limitation and the alleged deficiencies in the supporting evidence or reasoning of the agency. (a) Statistical Analysis As we noted above, EPA and U.S. Steel agree that BPT is currently in place at all outfalls but # 017 (which is discussed separately below). The company argues that technology-based limitations on those outfalls should be no more stringent than past operating levels, but EPA contends that in certain instances past operations do not reflect the careful and efficient operations required under the NPDES permit program. The past operating levels are reflected in the monitoring data included in the monthly reports submitted by U.S. Steel to the Indiana Stream Pollution Control Board from 1973 to 1975. EPA’s engineers used these data in calculating the permit limitations, but they disregarded extremely high discharge values they considered unrepresentative of proper plant or treatment-facility operations. U.S. Steel argues that this method was in error. Its proposed limitations were based on a statistical analysis of all the monitoring data, including the aberrations, and were computed so as to predict with a specified degree of accuracy, such as 95 percent, that no more than a given percentage of samples, such as 5 percent, would exceed the limitations. U.S. Steel points out that EPA discarded the high values without actual knowledge of their causes, although EPA witness Spyropoulos, a former design engineer for U.S. Steel who participated in EPA’s development of the effluent limitations, testified to a number of possible causes. He and the other EPA witnesses agreed with U.S. Steel that statistical analysis was one appropriate method for computing effluent limitations, and so do we. We also agree with EPA, however, that it is entitled to use its expertise in pollution-control technology in judging the reliability or representative quality of particular data. See American Meat Institute v. EPA, 526 F.2d 442, 457 (7th Cir. 1975); FMC Corp. v. Train, 539 F.2d 973, 986 (4th Cir. 1976). Although EPA did not determine the specific cause of particular high values, our review of all the monitoring data persuades us that its decision to exclude those values as aberrations was a permissible one. As EPA exhibits demonstrate, the Gary Works regularly operated at discharge levels well below those indicated by the excluded values during the 29-month monitoring period. The range among the values used in EPA’s calculations illustrates the operating flexibility available to U.S. Steel under the EPA method. There are two additional reasons for rejecting the U. S. Steel proposal. First, we agree with the testimony of the EPA witnesses that one of the goals of the NPDES permit program is to insure that pollution-control facilities are operated as efficiently and carefully as possible. The U. S. Steel proposal, with effluent limitations derived from data taken before the permit was issued, may build in a factor for human or mechanical lapses that should not be tolerated. Second, the limits proposed by U. S. Steel would, as EPA observes in its brief, actually allow an increase in the discharge of pollutants from Gary Works. U. S. Steel attempts to justify this result by showing that its proposal was consistent with EPA’s own guidelines for the steel industry. The company derived its proposed daily maximum limits by multiplying the daily average limits by three, in accord with those guidelines. See 40 C.F.R. part 420 and 39 Fed. Reg. 24118 (change # 6) (June 28, 1974). It failed however, to demonstrate that EPA intended the factor of three as anything but a rough approximation of the daily fluctuations likely to occur in the steel-manufacturing process. Where, as here, the performance data show the plant to be capable of operating on a regular basis within a relatively narrow range far below the arbitrary multiplier of the guidelines, EPA may use the power granted it by § 402(a)(1) of the Act to set limitations lower than those that would result from use of the arbitrary multiplier. See Leg. Hist, at 170,176,1468. To do otherwise would be to authorize an increase in the pollutants discharged by the plant, a result Congress certainly did not intend. See note 44, infra. (b) Surface-Runoff Effects U. S. Steel next argues that, if the more lenient effluent limitations it proposes are not accepted, then at least monitoring samples taken during periods of surface runoff resulting from rainfall or melting snow should be disregarded in determining compliance with the NPDES permit. As is demonstrated by the testimony of EPA witness McDermott, also an EPA engineer formerly employed by U. S. Steel, the agency considered surface-runoff effects in developing the effluent limitations for Gary Works. EPA’s analysis revealed that the surface runoff from a day-long storm of .4 inches per hour, over the entire drainage area of Gary Works, would comprise only slightly over 10 percent of the plant’s total water discharges for that day. The process-water portion of this total volume would be treated. The portion of the runoff that found its way into the 12 primarily cooling-water outfalls would have little or no ground contact because of the roof drains or, in the case of the runoff from the yard and road drains, would be taken to a sewer for treatment. And, if surface runoff did increase the concentration of total suspended solids in the cooling-water discharges, it would presumably increase those concentrations in the intake as well. The permit provision allowing U. S. Steel to calculate TSS levels on a net basis thus obviates to a great extent the need for a special surface-runoff exception. Finally, we note that U. S. Steel itself offered no proof of the extent of this supposed surface-runoff effect on the Gary Works. The rainfall data that were presented were based on conditions at Midway Airport in Chicago, and even this information was not correlated with particular high discharge values revealed by the data from the 29 months of monitoring. Thus we are unable to determine what effect surface runoffs have had on the discharge levels or the treatment facilities at the Gary Works. Accordingly, EPA was not required to accept U. S. Steel’s contention that exemptions should be granted for surface runoffs. (2) Outfall # 017 (a) BPT and Variance Before the issuance of the October 1974 permit in this case, EPA promulgated single-number effluent guidelines and limitations for the iron and steel manufacturing point-source category. 39 Fed. Reg. 24114 (June 28,1974); 40 C.F.R. part 420. In U. S. Steel’s permit the TSS limitations for outfall # 017, which serves the iron-making blast furnaces, were calculated from these limitations, 40 C.F.R. § 420.42, which, as is apparent from the Development Document, were based on EPA’s conclusion that recycling constituted BPT for iron-making blast furnaces. Cf. E. I. duPont de Nemours & Go. v. Train, 430 U.S. 112, 122, 132 n. 23, 97 S.Ct. 965, 972, 977 n. 23, 51 L.Ed.2d 204 (1977). In American Iron & Steel Institute v. EPA, 526 F.2d 1027 (3d Cir. 1975) (AISI (I)), the steel industry challenged various aspects of the regulations, but did not attack the 1977 TSS limitations based on the conclusion that recycling was BPT. The Third Circuit, while remanding the 1977 regulations, explicitly upheld the new-source and 1983 limitations on TSS discharges from iron-making blast furnaces, thereby approving recycling-based limitations twice as stringent as the 1977 limitations. The court’s remand was based in large part on its conclusion that § 301 limitations must specify a range of effluent reductions attainable through the application of BPT rather than single numbers. Apart from the fact that the Supreme Court’s approval of single-number effluent limitations in duPont renders this conclusion questionable, even the Third Circuit’s remand dealt only with the agency’s § 304(b)(1)(A) calculation of the “degree of effluent reduction attainable” by installing blast-furnace recycling; the underlying § 304(b)(1)(B) determination that recycling constitutes BPT remained unaffected. Thus, whether or not the entire iron and steel guidelines and limitations are resurrected by the duPont decision, the treatment in AISI (I) of the TSS limitations for iron-making blast furnaces leaves unimpeached EPA’s conclusion that recycling is BPT. Nevertheless, following that decision, the EPA Regional Administrator ordered a limited remand of the instant permit proceeding, in order to develop “further data on the best practicable engineering judgment as to what constitutes bpt” for the iron-making blast furnaces at Gary Works. After the remand, new TSS limits were developed for outfall # 017 based on EPA’s determination that a blast-furnace recycling system constitutes the “best practicable control technology currently available” for that phase of the iron-making process, § 304(b)(1)(B). U. S. Steel challenges EPA’s determination that blast-furnace recycling constitutes BPT for the iron-making process at the Gary Works on three grounds: (1) EPA failed to consider the six factors set forth in § 304(b)(1)(B) as “relating to the assessment of [BPT],” and therefore the agency’s designation of recycling as BPT was improper. (2) Installation of a recycling system would cause violations of the sulphate limits in the permit, and therefore recycling is not a “practicable” technology for Gary Works. (3) A recycling system cannot be built and placed in operation at Gary Works before July 1,1977, and therefore is not “currently available” to U. S. Steel. To begin with, we believe it was unnecessary for EPA to reexamine the BPT question following the remand in AISI (I). As duPont makes clear, technology-based § 301 effluent limitations and § 304 guidelines, and necessarily the BPT on which they are based, are uniform national standards and are not to vary from plant to plant. duPont v. Train, supra, 430 U.S. at 127, 130-132, 136-137, 97 S.Ct. at 974, 976, 979; see also AISI v. EPA, supra, 526 F.2d at 1043. When no limitations or guidelines are yet available, NPDES permits are to be issued under § 402(a)(1) upon “such conditions as the Administrator determines are necessary to carry out the provisions of this Act.” See Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692, 709-710 (1975). We believe that under these circumstances the BPT to be ascertained by EPA is still a uniform national standard for the class or category of plants of which the plant in question is a member. Therefore, even if the applicable BPT had not already been determined, the appropriate inquiry for EPA would have been, not what constituted BPT for the Gary Works, but what constituted BPT for the category and class of point sources of which the Gary Works was a member. In fact, however, EPA had already determined BPT for iron-making blast furnaces in developing the limitations which were remanded in AISI (I). This BPT determination, and the nationally uniform TSS limitations based thereon, unimpeached, as we have seen, by the AISI (I) remand, constitutes a proper basis for establishing the TSS limitations in the permit for the Gary Works. It was unnecessary for EPA to consider the § 304(b)(1)(B) factors anew in this proceeding or otherwise reexamine the BPT issue. The proper inquiry for EPA, in establishing the permit limitations in this proceeding, was whether the circumstances of the individual plant warranted a variance from the nationally uniform limitations. Although the Act itself provides for individual source variances only from the 1983 limitations, the Supreme Court’s opinion in duPont v. Train, supra, 430 U.S. at 127-128,97 S.Ct. at 975, infers variance authority in EPA with respect to the 1977 limitations as well. EPA has regularly included variance provisions, allowing different effluent limitations if “fundamentally different” factors are shown, in its regulations containing 1977 limitations, and it did so in the iron and steel regulations remanded in AISI (I)- The agency’s reexamination of the BPT issue as if it were obligated to determine BPT for the Gary Works individually was the equivalent of determining whether there were fundamentally different factors at that plant which made BPT impracticable there and thus justified a variance from nationally applicable limitations based on BPT. From EPA’s conclusion that recycling was “BPT for the Gary Works” it follows that the plant was not entitled to a variance. We now examine the facts and reasoning underlying that conclusion. In both the initial hearing and the hearing on remand EPA considered the Development Document and other information it had used in formulating the guidelines and limitations for the iron and steel industry. At the hearing on remand two EPA employees, James McDermott and Peter Spyropoulos, testified concerning the applicability of recycling technology to the Gary Works. The record demonstrates that EPA analyzed the § 304(b) factors with respect to the Gary Works specifically, as well as with respect to the steel industry in general. Furthermore, substantial evidence supports EPA’s designation of blast-furnace recycling as BPT for the iron-making process in the steel industry generally and the reasonableness of imposing limitations on the Gary Works based on that BPT. It is undisputed that recycling significantly reduces TSS levels in water discharged from iron-making blast furnaces. Moreover, as McDermott testified, the reduction in water flow achieved by the recycling system also increases the concentration of other pollutants, thereby rendering them susceptible to treatment or disposal which would otherwise be impossible or uneconomic. The Development Document notes that although a “majority of the [steel] plants around the country are operating on a once-through basis,” recycling is employed as a water conservation device “in many plants.” Spyropoulos testified that he helped design a recycling system similar to the one EPA proposes here; that system was installed at U. S. Steel’s own South Works Plant in South Chicago by December 1970. Blast-furnace recycling is already in place at nearly all the iron-making facilities in the Chicago area; it is, as noted in the Development Document, “a well-established art.” Both McDermott and Spyropoulos testified that blast-furnace recycling could be installed at the Gary Works. Their testimony was based on an inspection of the plant, a survey of four different steel plants employing blast-furnace recycling, and discussions with manufacturers, contractors, and others. They also testified regarding the pollution-control facilities now in place at Gary Works, the new facilities and equipment needed for a recycling system there, and the costs and time required to construct and operate such a system. EPA could reasonably conclude that, despite the age of the iron-making blast furnaces at Gary Works, retrofitting would be feasible. Recycling has been installed at U. S. Steel’s older South Works Plant and other existing iron-making blast furnaces. Because it is a part of the post-process treatment, it does not require changes in the manufacturing process itself. EPA’s conclusions demonstrate that a variance based on infeasibility of recycling for the Gary Works was not justified. Compare AISI v. EPA, supra, 526 F.2d at 1048. We also reject U. S. Steel’s argument that the TSS limitations based on recycling as BPT are improper because recycling would result in violations of other limitations in the permit, specifically those governing discharges of sulphate. This argument is based on the fact that the acidity-alkalinity control unit, which would be included in the proposed recycling system to minimize scaling, would use sulphuric acid to lower pH. See note 40, supra. This would increase discharges of sulphates above the levels allowed by the sulphate limitations of the permit. U. S. Steel asserts that no technology is known that will enable it to solve this problem, and that therefore either the sulphate limits or the TSS limits must give way. The sulphate limits were based on the Indiana waste load allocations, and were included in the permit pursuant to § 301(b)(1)(C). Although these limits restrict U. S. Steel to its present discharges, and may be below the level necessary to maintain water quality in U. S. Steel’s segments of the stream, they are the waste load allocations adopted by the Indiana Stream Pollution Control Board and approved by EPA, under § 303(d) of the Act. Thus the sulphate limits are not subject to challenge in this proceeding, and must be accepted by EPA and this court. The sulphate limitations cannot be said to make recycling “impracticable” at Gary Works, and therefore not BPT under § 301(b)(1)(A) or § 304(b). As we observed above, the latter section provides for a determination of BPT which will be the basis for guidelines and effluent limitations that will be uniform throughout the nation, duPont v. Train, supra, 430 U.S. at 129, 97. S.Ct. at 975. See also Leg. Hist., at 156, 162, 170. BPT, being nationally applicable, cannot be affected by the circumstances at a single plant. The real question, therefore, is whether the stricter Indiana standards justify a variance. We believe they do not. The existence of state waste load allocations requiring limitations more stringent than the federal, technology-based limitations should not create a loophole through which compliance with the federal limitations may be evaded. Section 301(b)(1)(C) can hardly have been intended to authorize a state, by imposing limitations incompatible with BPT, to allow its industries to escape their duty to comply with nationally uniform federal limitations. An important reason for Congress’ adoption of nationally applicable federal effluent limitations was to prevent individual states from attracting industry by adopting permissive water quality standards. See, e. g., Leg. Hist., at 156, 263, 574-575. Surely Congress never intended those federal limitations to be relaxed because a state adopted water quality standards and waste load allocations requiring more stringent pollution controls. See Leg. Hist., at 1461,1468. Indeed, § 301(b)(1) provides that BPT-attainable effluent limitations “and . any more stringent limitation . . .established pursuant to State law or regulations” must be achieved by July 1, 1977. Thus, we hold that the existence of more stringent state limitations is not one of the “factors” to be considered in determining whether an individual point source is entitled to a variance from a limitation based on BPT. This makes it unnecessary to consider EPA’s alternative argument that there presently exists technology capable of achieving both the TSS and the sulphate limitations. See note 20, supra. U. S. Steel challenges the limitations based on blast-furnace recycling on the additional ground that it cannot construct and place into operation a recycling system by July 1, 1977. This contention must also be rejected. There was time to install a recycling system between October 31, 1974, when the permit was first issued, and July 1,1977, according to the testimony of Spyropoulos. The Supreme Court has held, in construing the Clean Air Act, that “litigation . . [seeking a variance from national standards] ... is carried out on the polluter’s time, not the public’s . . . Train v. Natural Resources Defense Council, 421 U.S. 60, 92, 95 S.Ct. 1470, 1488, 43 L.Ed.2d 731 (1975). There is no reason not to apply that principle here. Therefore U. S. Steel cannot use the delay between October 1974 and the present as an excuse for not installing a recycling system. This conclusion is further supported by Congress’ intent that BPT be determined on a nationwide basis, with substantially the same technology-based effluent limitations applicable to all similar point sources. Temporal feasibility of BPT installation is not included in the § 304(b) factors and should not be a ground for a variance. Consideration of that factor would emasculate the mandatory nature of the July 1, 1977 compliance deadline. See Bethlehem Steel Corp. v. Train, 544 F.2d . 657 (3d Cir. 1976), cert. denied, - U.S. -, 97 S.Ct. 1666, 51 L.Ed.2d 369 (1977). Also, as the Third Circuit noted in Bethlehem Steel, Congress considered and rejected a provision of the House bill, which would have enabled EPA to grant a hardship exception to the July 1, 1977 compliance deadline when it “determines that it is not possible either physically or legally to complete the necessary construction within the statutory time limit.” Although Congress’ failure to enact this extension provision is not conclusive of its intent, it does offer some further confirmation of our conclusion that U. S. Steel was required to litígate on its own time. Id., 544 F.2d at 662. (b) Interim Limitations Sustaining EPA’s conclusions that recycling is BPT and that Gary Works is not entitled to a variance from the limitations based on BPT, does not, however, end our inquiry. U. S. Steel also challenges EPA’s § 304(b)(1)(A) calculation of “the degree of effluent reduction attainable through the application of [BPT]” at Gary Works, reflected in the interim TSS limitations. EPA calculated those limits by estimating the flow of water in the recycling system, the TSS concentration in the recycling flow, and the volume of water discharged from the system, or blowdown. EPA then multiplied the blowdown volume, expressed in gallons of water per ton of iron cast, by TSS concentration figure, and multiplied the product by a daily iron-production figure. The daily average effluent limitation on TSS discharges was the result of these computations. U. S. Steel does not question EPA’s engineering analysis of the water flows or TSS concentration levels in the proposed recycling system. The company’s argument is that EPA’s use of a daily iron-production figure of 13,500 tons for outfall # 017 was improper. Both parties agree that the entire Gary Works produces an average of 20,000 tons of iron each day. About 6,500 tons of this total is usually cast by one blast furnace, number 13, which is a new furnace with its own recycling system that does not discharge through outfall # 017. Only the older furnaces, numbers 1-12, discharge through that outfall. The evidence also establishes that these older furnaces have produced up to 16,700 tons of iron in one day, and that furnace 13 has produced at least up to 8,700 tons in one day. The capacity of furnaces 1-12 is 19,971 tons per day; only eight of them need to be in operation for the group to cast 13,500 tons. U. S. Steel’s memorandum prepared pursuant to the Regional Administrator’s Order of Remand acknowledged that “some” of furnaces 1-12 are not operating at the present time. Our review of the record persuades us that substantial evidence supports EPA’s use of 13,500 tons as the average daily iron-production figure for the blast furnaces served by outfall # 017. U.S. Steel does not contend that this is not the normal production figure. Rather, it argues that, if furnace 13 were out of service or unable to produce at capacity for some reason, the production slack might be taken up by furnaces 1-12, resulting in higher water and TSS discharges from outfall # 017. The company argues, in effect, that the permit should be based, not an actual production, but on the capacity of furnaces 1-12, because one day they might be required to produce up to that figure. We reject this claim. If special circumstances, such as relining or repair, require U.S. Steel to shut down furnace 13, a modification of the permit can be sought. The interim limit on the daily average TSS discharges from outfall # 017 reflects the usual operations at Gary Works. The daily maximum represents a 50 percent increase over the daily average discharge, permitting occasional increases in blowdown flows or TSS concentrations. Moreover, EPA’s use of a 50 mg/liter figure, instead of the projected operating level of 36 mg/liter, in calculating the TSS concentrations in the blowdown and recycling waters resulted in limitations which give U.S. Steel a measure of operating flexibility. We uphold the interim effluent limitations on TSS discharges from outfall # 017. U.S. Steel argues in its reply brief that EPA “completely failed to determine limitations for other contaminants” when it calculated the “degree of effluent reduction” attainable by converting to blast-furnace recycling. As an argument raised for the first time in the reply brief, it need not be considered. American Meat Institute v. EPA, supra, 526 F.2d at 462. We observe, however, that here too U.S. Steel misses the distinction between the technology-based effluent limitations required by § 301(b)(1)(A) and the limitations based on state law required by § 301(b)(1)(C). U.S. Steel could not have benefited if EPA had first determined the effect of recycling on other pollutants: Indiana standards impose a ceiling on pollutants, which cannot be raised whatever the effect of recycling. (c) Final Limitations The interim limitations for TSS discharges from outfall # 017 are 1,688 pounds daily average and 2,532 pounds daily maximum. The permit’s final limitations require U.S. Steel to reduce its TSS discharges to 500 pounds daily average and 750 pounds daily maximum by July 1, 1979. The Regional Administrator found that these limits can be achieved by installing a system which treats the blowdown from the recycling system, and that U.S. Steel must install such a system in any event, in order to achieve the effluent limitations based on state law. Alternatively, he found that “improved efficiency of operation of the recycle system” could achieve these limitations. U.S. Steel’s challenge to this finding is the conclusory assertion that “[t]he proper application of blast furnace recycle technology will not result in compliance with those final effluent limitations for suspended solids.” (Emphasis in original.) The Regional Administrator’s findings were based on two EPA exhibits introduced at the administrative hearing on remand. Inasmuch as these exhibits were not included in the parts of the record brought here by the parties, we cannot examine them and must assume that they support the findings. (3) Cooling-Water Intake Structures The permit also requires U.S. Steel to conduct an intake monitoring program, as part of a study of the environmental impact of the cooling-water intakes for Gary Works, and to submit a proposal for meeting the § 316(b) requirement that “the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.” U.S. Steel objects to this condition, arguing that this requirement may not be applied to it because Congress only intended that steam-electric generating plants be required to comply with § 316(b), and that § 402(a)(1) does not allow EPA to condition NPDES permits upon compliance with § 316(b). We reject these arguments. First, § 316(b) applies on its face to all technology-based effluent limitations “applicable to a point source.” U.S. Steel asks us to rely on an isolated remark in the legislative history to reject the plain meaning of the statute. EPA, which is the agency charged with enforcing this statute, construes § 316(b) to apply to all point sources. That interpretation of the statute comports with its plain meaning, and we accept it. Second, as § 316(b) itself makes clear, these requirements are to be implemented through standards established pursuant to §§ 301 and 306. Thus § 402(a)(1) implicitly requires the Administrator to insure compliance with § 316(b) as one of the permit conditions. See also Appalachian Power Co. v. Train, supra, 545 F.2d at 1371-1372. U.S. Steel’s argument that, even if applicable, the permit provision is unreasonable must also be rejected. Not even a “rough cost-benefit analysis” is necessary as a basis for the requirement that the company conduct a study of the impact of the present cooling-water intake structures on aquatic life in Lake Michigan. Such a study, intended to assist EPA in developing § 316(b) effluent limitations, is well within the agency’s § 308 authority. Finally, the company’s complaint regarding EPA’s failure to compare the costs and benefits of the various technologies available to reduce the adverse environmental impacts of cooling-water intake structures comes too soon. No particular control methods are required by the permit, and we trust that EPA will conduct a limited cost-benefit analysis once the information on which an evaluation of the various technologies can be made becomes available. Accordingly, we affirm the cooling-water intake provision of the permit. C. Monitoring Requirements U.S. Steel has two basic complaints regarding the monitoring required by the permit: it is to be done too often and at too many places. The initial monitoring requirements contained in the permit correspond closely to U.S. Steel’s present monitoring practices, as required by the Indiana Stream Pollution Control Board. The final requirements increase the monitoring at all process-water outfalls, requiring daily monitoring for several pollutants as well as temperature and continuous monitoring for flow and pH at several outfalls. Both the remaining process-water and all cooling-water outfalls will be monitored once a week for several pollutants and once a month for others. All the monitoring requirements exceed those proposed by U.S. Steel and present levels, both in the frequency of measurement and in the number of pollutants for which measurements must be taken. Section 308 of the Act grants the Administrator broad authority to require NPDES permittees to monitor “at such locations [and] at such intervals” as he shall prescribe, “[w]henever [it is] required to carry out the objective of [the Act].” Similarly, § 402 vests him with authority to “prescribe conditions for [NPDES] permits ... including conditions on data and information collection . . . .” We conclude that the monitoring requirements set forth in the permit are within this broad authority- EPA considered four factors in determining the monitoring requirements, and set the requirements separately for each outfall. These factors were: the nature of the discharges and their impact on the receiving stream; the variability of the discharges; the volume of water discharged; and the present monitoring practices of U.S. Steel. These factors are proper, and the record establishes that they were given appropriate weight by EPA. For example, because of the higher concentrations and greater variety of pollutants present in process water, the permit appropriately requires more frequent monitoring of process-water discharges than of cooling-water discharges. Similarly, more frequent monitoring was required at those outfalls which tended to fluctuate in the amount and quality of their discharges. The monitoring requirements — similar to or less stringent than those imposed in the approximately 50 other steel-plant permits issued in Region Five — will not work an unjustified economic hardship on U.S. Steel. The chief difference between U.S. Steel’s present monitoring practices and the initial requirements is that compliance at nine of the outfalls will be based on a 24-hour composite sample rather than the 8-hour composite sample presently prepared. The use of the 24-hour composite sample is extended to all outfalls by the final monitoring requirements. These changes will more than triple the number of samples taken. The use of a 24-hour composite sample will doubtless be more expensive than present monitoring practices, but it will present a more complete picture of the discharges from the Gary Works, reflecting fluctuations over the course of an entire day of production. At the outfalls monitored on a daily basis, it will allow an almost continuous check on the performance of the treatment facilities at Gary Works. By comparison, U.S. Steel’s permit proposals call for monitoring only once a week, even at the seven outfalls now sampled five times in eight days, and would replace the monitoring for several pollutants now conducted at each outfall with monitoring at the Pennsylvania Railroad Bridge, four- and-one-half miles downstream. Monitoring at each outfall enables the permittee and EPA to pinpoint the source of any discharges that exceed the plant-wide limitations on particular pollutants. Furthermore, the U.S. Steel proposal would, in effect, allow it to use the four-and-one-half mile stretch of the river as an extended treatment facility, something hardly contemplated by either the Indiana water quality standards or the FWPCA. We cannot say that EPA exceeded its authority or acted unreasonably when it determined that regular and frequent monitoring at each outfall is necessary to insure prompt detection and rectification of permit violations. Therefore, we affirm the initial and final monitoring requirements set forth in the permit. D. Deep Well The permit imposes effluent limitations and study and monitoring requirements on U.S. Steel’s discharges of acid wastes into a deep well. U.S. Steel challenges EPA’s legal authority to impose these restrictions, citing the language of the Act, United States v. GAF Corp., 389 F.Supp. 1379 (S.D.Tex.1975), and the legislative history of the Act on which that decision is based. We reject U.S. Steel’s argument. The statute authorizes EPA to regulate the disposal of pollutants into deep wells, at least when the regulation is undertaken in conjunction with limitations on the permittee’s discharges into surface waters. Section 402(a)(1) provides that the EPA’s permit program “shall be subject to the same terms, conditions, and requirements as apply to a state permit program.” And EPA approval of a state’s permit program, governing “discharges into navigable waters,” is conditional upon EPA’s conclusion that the state program includes “adequate authority . [t]o issue permits which . . . control the disposal of pollutants into wells.” Section 402(b)(1)(D). Thus EPA’s administration of an interim NPDES permit program concerning surface discharges includes the authority to control disposals into wells. The general provisions and definitions of the FWPCA support this view of EPA’s authority. Section 402(a)(1) empowers the Administrator to “issue a permit for the discharge of any pollutant, or combination of pollutants,” provided certain conditions are met. “Pollutant” is defined in § 502 of the Act to include “chemical wastes . discharged into water.” Section 502(6). One exception to the definition of “pollutant,” § 502(6)(B), provides that “pollutant . . . does not mean . . . (B) water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well ” Applying the canon expressio unius est exclusio alterius to the quoted language, we conclude that the listed materials are “pollutants” when injected into wells under any other circumstances. U.S. Steel does not deny that its acid discharges into the deep well are “chemical wastes” within § 502(6). Therefore, their discharge into the deep well may properly be regulated by the permit-granting authorities pursuant to § 402(a)(3) and (b). The legislative history also supports our construction of the statute. Exhibit 1, accompanying Senator Muskie’s report of the conference committee on S. 2770 (the Act), states as follows: “The Conferees intend that this provision [§ 502(6)(B)] assure that no injection or disposal occur in such a manner as to present a potential hazard to ground water quality.” Leg. Hist., at 178. During the House debate on the report of its conference committee, Representative Kemp stated that because “[f]or the first time ground waters have been given the same emphasis as surface waters . . . [the Act is] an important step forward in the protection of the underground environment . . . .’, Similarly, the report on the House version of the Act notes its committee’s intent that “the exclusion from the term ‘pollutant’ . appl[y] only to the properly executed injection of materials into wells to stimulate the primary, secondary, or subsequent production of crude oil or natural gas, and to the properly executed disposal in wells of brines derived in association with [their] production . . . .” Finally, the Senate Report which accompanied S. 2770 notes that EPA is to prepare “guidelines for disposal of material in deep wells,” Leg. Hist., at 1471, and explains that, while federally imposed standards for ground waters are not contemplated, state regulation under § 402 is required “to protect ground waters and eliminate the use of deep well disposal as an uncontrolled alternative to toxic and pollution control.” Leg. Hist., at 1491. E. Schedules of Compliance In addition to the specific discharge limitations discussed above, the permit includes schedules of compliance designed to insure that the effluent limitations required by the permit are achieved in a timely fashion. These items are included in the permit pursuant to the Administrator’s authority under §§ 301, 401, and 502(11) and (17). U.S. Steel does not challenge EPA’s authority to set reasonable schedules of compliance under these statutory provisions. Instead, the company argues that the schedules set in the permit are arbitrary, that EPA’s delay in promulgating nationally applicable effluent guidelines entitles it to an extension of the July 1, 1977 deadline for achieving BPT-based effluent limitations, and that the statute is satisfied.if the permittee, before the deadline, initiates a program which will eventually achieve compliance with the limitations. We reject these arguments, and substantially approve the schedules of compliance as they are set forth in the permit under review. First, we disagree with U.S. Steel’s general characterization of the schedules of compliance as “arbitrary, capricious and without foundation.” These schedules were established with the required levels of effluent reduction and the statutory deadlines in mind and appear to us to be on the whole reasonable. U.S. Steel points out that several of the compliance dates had already passed by the time the permit was issued. We do not take these clearly unfair permit conditions as lightly as it appears the agency itself does. Regardless of whether they weré due to a mere “quirk of administrative procedure,” as EPA asserts, the inclusion of dates which have already passed and therefore cannot be complied with is inexcusable. Fortunately, there was no prejudice to U.S. Steel from these inclusions, because EPA itself recognized that no enforcement action could be brought for non-compliance with those dates without violating due process. And, as the agency observes, § 309(a)(3) gives the Administrator discretion to issue a compliance order in lieu of bringing a civil action. The presence of the invalid parts of the schedules, which have not prejudiced U.S. Steel, does not require us to invalidate the schedules in their entirety. U.S. Steel’s second argument, that EPA’s delay entitles it to an extension, must be rejected in view of the mandatory nature of the deadlines contained in § 301(b). As we observed in our discussion of the company’s claim that temporal infeasibility made recycling not “currently available” to it, the congressionally imposed deadline of July 1,1977 is a firm one. We agree with the view expressed by the Third Circuit in Bethlehem Steel Corp. v. Train, supra, 544 F.2d at 663, that “it [is] not for the courts to upset that Congressional decision.” As the Supreme Court noted in an analogous context, such a statutory deadline is not subject to judicial nullification. Union Electric Co. v. EPA, supra, 427 U.S. at 269, 96 S.Ct. 2518. Under the FWPCA, EPA was required to promulgate § 304 guidelines for various industries by October 18, 1973. Sections 304(b)(1)(A) and 306. Natural Resources Defense Council, Inc. v. Train, supra, 510 F.2d at 704-705. The agency did not promulgate guidelines for the iron and steel industry, however, until compelled to do so by that decision. 39 Fed.Reg. 24114 (June 28,1974). U.S. Steel argues that this delay in the statutory timetable either nullifies the July 1,1977 deadline or entitles it to an extension of the time for compliance. We do not believe Congress intended such a result. U.S. Steel’s permit was first issued in October 1974, well before the January 1, 1975 deadline apparently contemplated by Congress for the issuance of permits. See § 402(k); see also Natural Resources Defense Council, Inc. v. Train, supra, 510 F.2d at 706-710. Although EPA’s guidelines were then in effect, BPT and the resulting effluent limitations would have been determined in the permit proceeding itself if they had not yet been promulgated. Id. at 709. Thus, it appears that the obligations imposed on an individual discharger by the permit are enforceable according to the statutory timetable whether or not they are based on previously issued guidelines. U.S. Steel does not argue that the remand of the iron and steel guidelines and the resulting remand of this permit proceeding themselves justify an extension. As we have already held with respect to recycling as BPT, U.S. Steel must litigate on its own time. Cf. Train v. Natural Resources Defense Council, supra, 421 U.S. at 92, 95 S.Ct. 1470. U.S. Steel’s final argument is that the statute itself allows the July 1, 1977 deadline to be met simply by beginning action on a schedule of compliance which will eventually result in achieving the limitations based on BPT or state regulations. We reject this contorted reading of the statute. We recognize that the definition of “effluent limitation” includes “schedules of compliance,” § 502(11), which are themselves defined as “schedules ... of actions or operations leading to compliance” with limitations imposed under the Act. Section 502(17). It is clear to us, however, that § 301(b)(1) requires point sources to achieve the effluent limitations based on BPT or state law, not merely to be in the process of achieving them, by July 1, 1977. See Bethlehem Steel Corp. v. Train, supra, 544 F.2d at 662. Therefore we uphold the schedules of compliance set forth in the permit. We also deny U.S. Steel’s recently filed motion for a stay pending appeal of the schedule of compliance contained in the permit for the installation of blast-furnace recycling at outfall # 017. The District Court’s decision in No. 76-1425 is Affirmed. In No. 76-1616 the Petition for Review is Denied. . Sections of the Act are referred to in this opinion by their designations in the Statutes at Large. The parallel United States Code citations for the sections to which most frequent reference is made are as follows: Section 301 — 33 U.S.C. § 1311 Section 303 — 33 U.S.C. § 1313 Section 402 — 33 U.S.C. § 1342 Section 510 — 33 U.S.C. § 1370 . The Act has been summarized and explained elsewhere. E. g., E. I. duPont de Nemours & Co. v. Train, 430 U.S. 112, 116-121, 97 S.Ct. 965, 969-971, 51 L.Ed.2d 204 (1977); EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 202-209, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976); American Meat Institute v. EPA, 526 F.2d 442, 444-446 (7th Cir. 1975). Our summary, therefore, will be limited to the provisions directly involved in these appeals. . As the Supreme Court observed in EPA v. California ex rel. State Water Resources Control Board, supra, 426 U.S. at 205, 96 S.Ct. at 2025, “Under NPDES, it is unlawful for any person to discharge a pollutant without obtaining a permit and complying with its terms.” To the extent that language in our earlier opinion in Stream Pollution Control Board of Indiana v. U.S. Steel Corp., 512 F.2d 1036, 1042-1043 (7th Cir. 1975), may be read as inconsistent with this interpretation of the Act, it is of course no longer controlling. . The terms “EPA” and “the Administrator” are used interchangeably in this opinion. . Section 510 preserves in general terms the right of any state to impose limitations and standards more stringent than those adopted under the Act. Accordingly, state limitations supersede less stringent 1983 federal limitations adopted pursuant to § 301(b)(2), even though that subsection does not contain a counterpart of § 301(b)(1)(C). As for new sources, compare § 306(d) with § 510. . One lake outfall (# 039) and six river outfalls (## 002, 017, 020, 028, 030, and 034) discharge primarily “process waste water,” which is defined in the Regulations, 40 C.F.R. § 401.-ll(q), as: “any water which during manufacturing or processing, comes into direct contact with or results from the production or use of any raw material, intermediate product, finished product, by-product, or waste product.” The remaining 12 outfalls discharge “noncontact cooling water,” which is defined in the Regulations, 40 C.F.R. § 401.1 l(n), as: “water used for cooling which does not come into direct contact with any raw material, intermediate product, waste product or finished product.” . Section 13 of the River and Harbor Act of 1899, 33 U.S.C. § 407, commonly known as the Refuse Act, prohibits a manufacturing establishment from discharging refuse water into any navigable water or into any tributary that could wash the refuse into navigable water. The Secretary of the Army, however, was authorized to issue permits allowing such discharges “whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby.” In light of this provision, U.S. Steel argued in United States v. United States Steel Corp., 328 F.Supp. 354 (N.D.Ind.1970), affd, 482 F.2d 439 (7th Cir.), cert. denied, 414 U.S. 909, 94 S.Ct. 229, 38 L.Ed.2d 147 (1973), that the Refuse Act covered only discharges that obstructed navigation or anchorage. After the district court’s adverse decision in that case, and presumably because of it, the company filed its 1971 application for a permit under the Refuse Act. In 1973 the Supreme Court held that the Refuse Act imposed “a flat ban on the unauthorized deposit of foreign substances into navigable waters, regardless of the effect on navigation.” United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 671, 93 S.Ct. 1804, 1815, 36 L.Ed.2d 567 (1973). . The final limitations for one outfall, # 034, also cover zinc, chromium, and tin. U.S. Steel did not contest these limitations during the agency proceedings. . In Porter County Chapter of the Izaak Walton League of America, Inc. v. Train, 548 F.2d 1298 (7th Cir. 1977), this court assumed, without deciding, that the APA applies to NPDES permit-issuing proceedings. . In its brief in American Meat Institute v. EPA, supra, 526 F.2d at 442, EPA acknowledged the applicability of the APA to informal rule-making proceedings under the Federal Water Pollution Control Act Amendments. . Section 556 applies to hearings required by § 554, and § 557 to hearings required to be conducted in accordance with § 556. . Cf. E. I. duPont de Nemours & Co. v. Train, supra, 430 U.S. at 136, 97 S.Ct. at 979: “[I]n other portions of § 509, Congress referred to specific subsections of the Act and presumably would have specifically mentioned § 301(c) if only action pursuant to that subsection were intended to be reviewable/in the Court of Appeals.” / . In resisting U.S. Steel’s argument that the Administrative Procedure Act required the administrative law judge to make the initial decision, EPA argues halfheartedly that § 554(d)(A) applies and exempts initial license application proceedings from the requirement. Elsewhere it inconsistently argues that the “substantial evidence” standard of judicial review is not applicable despite § 706(2)(E), which makes that standard applicable to proceedings governed by §§ 556 and 557, as license application proceedings are. U.S. Steel, although it argues that the “substantial evidence” test is applicable for other reasons, elsewhere urges that the hearing officer should have made the initial decision, arguing that § 554(d)’s exemption for initial license application proceedings is inapplicable. See text at Part III, A(2)(b), infra. As we observed above, see supra, text at note 7, this appears to be U.S. Steel’s first application for a discharge permit. . More than 42,000 dischargers have applied for permits, E. 1. duPont de Nemours & Co. v. Train, supra, 430 U.S. at 132, 97 S.Ct. at 977, of whom about 2,000 have requested adjudicatory hearings. Gaines, Decisionmaking Procedure at the Environmental Protection Agency, 62 Iowa L.Rev. 839, 893, 894, 896 n. 287 (1977). If a substantial proportion of the applicants had elected to litigate, the entire permit program would have become hopelessly bogged down before the agency and the courts of appeals, regardless of whether the adjudication provisions of the APA apply. . 40 C.F.R. § 125.36(n)(12), . The availability of a state remedy is in dispute. In the view we take of the case, it is unnecessary to resolve that dispute. . There the West Virginia Department of Natural Resources had certified the discharge permit for only two years, until July 1976, because of its concern that iron discharges from the company’s mine might exceed the levels allowed by the applicable water quality standards and, after July 1, 1977, by § 301(b)(1)(C) of the FWPCA. The issue, accordingly, concerned only the duration of an NPDES permit, not one of the conditions or limitations upon the permittee’s discharges. Compare 40 C.F.R. § 125.22 with 40 C.F.R. § 125.25. In view of what is arguably a conflict between our views and those of the Fourth Circuit in the Consolidation Coal case, the portions of this opinion relevant to our holding have been circulated among all judges of this court in regular active service. No judge favored a rehearing in banc with respect to that holding. . While the APA is not an independent source of jurisdiction, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), 28 U.S.C. § 1331(a) confers jurisdiction over actions such as this without regard to the amount in controversy. See 430 U.S. at 105, 97 S.Ct. at 984. Cf. Bethlehem Steel Corp. v. EPA, 538 F.2d 513 (2d Cir. 1976). . The permit limitations are: Daily Average Daily Maximum (In lbs.l (In lbs.l Ammonia 2,150 4,300 Cyanide 109.5 219 Phenol 25.76 51.52 Chloride 40,023 80,046 Fluoride 2,778 5,556 Sulphate 95,660 191,320 These limitations are applied on a net basis. . EPA contends that there are several available technologies which, used alone or in combination, would probably enable U.S. Steel to comply with the waste load allocations. These include alkaline chlorination, activated carbon adsorption, incineration (i. e., coke quenching or dry slag cooling), deep well injection, ferroferri cyanide removal, air or steam stripping, blowdown reductions, or discharge into an expanded Gary sewage treatment plant. . See, e. g., Leg. Hist., at 145, 246, 353, 379, 524, 1232-1233, and 1461-1462. (All citations to the legislative history are to “A Legislative • History of the Water Pollution Control Act Amendments of 1972,” prepared by the Environmental Policy Division of the Congressional Research Service of the Library of Congress (Comm. Print 1973).) Compare Union Electric Co. v. EPA, 427 U.S. 246, 263-268, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976). . EPA’s concession here and in the proceeding below, that U.S. Steel may challenge the waste load allocations as not “necessary to meet water quality standards,” is apparently based on the opinion of its General Counsel that a § 401 certification is conclusive on the agency but a § 303(d) “Load Allocation Summary” is not, although the latter is “clearly entitled to weight in the Administrator’s decision.” Decision of the General Counsel No. 27, at 2 (Aug. 4, 1975). Compare, however, Decision of the General Counsel No. 44, at 5 (June 22, 1976), where the transcendent authority of § 301(b)(1)(C), even in the absence of certification, seems to be recognized. . This appears under the heading, “It is Impossible to Comply with the Discharge Limitations for Ammonia, Phenol, Cyanide, Chloride, Sulfate and Fluoride.” If petitioner’s conclusory assertion in its reply brief that “the limitations for chloride, sulfate and fluoride were based on an erroneous interpretation of the Combinatorics study” was meant to raise this issue specifically, it came too late. American Meat Inst. v. EPA, supra, 526 F.2d at 462 n. 44. . Instead of the full record, EPA filed a certified list as provided in Circuit Rule 16(b). That rule gave U.S. Steel the right, which it did not exercise, to have the whole record sent up. The appendixes contain only limited excerpts from the record. . In view of EPA’s concession, however, and the fact that this is our first opportunity to review an NPDES permit, we have examined those parts of the record before us that bear on the necessity issue. That examination is briefly reported in an unpublished order filed simultaneously with this opinion. . The limitations are different for the lake and the river, varying seasonally for each body of water. Discharges into the Grand Calumet River may not cause waters adjacent to the discharge to exceed 60 °F from October through March, or 90 °F during the six spring and summer months. Comparable limitations for the lake are the lower of existing temperature plus 3°F or 45 °F during January-March, 50 “F in December, 55°F in April, 60°F during May and November, 65°F in October, 70°F in June, and 80 °F during July-September. . U.S. Steel argues that these limitations are water quality standards and not effluent limitations. This semantic argument is without merit. Inasmuch as “heat” is defined as a pollutant in § 502(6) of the Act, § 301(a) renders any “discharge” of heat unlawful unless performed in compliance with the Act. It is clear from § 303(d)(1)(B) that Congress thought it had enacted “controls on thermal discharges” under § 301(b). The term “effluent limitations,” defined in § 502(11) of the Act, therefore includes restrictions on discharges of heat or, as § 316(a) itself expresses it, “controljs] of the thermal component of any discharge.” The regulations note that limitations on heat are “not appropriately expressed by weight,” 40 C.F.R. § 124.43, but they must be expressed in some fashion. Because of the convenience of temperature limits, thermal water quality standards do not need to be “translated” in order to become applicable to an individual discharger as effluent limitations. See the review of the Act authored by EPA’s former General Counsel, R. Zener, “The Federal Law of Water Pollution Control,” Federal Environmental Law 682, 693 (E. Dolgin and T. Guilbert, ed. 1974). Bethlehem Steel Corp. v. EPA, 538 F.2d 513 (2d Cir. 1976), is not contrary. The court there simply held that not all “water quality standards” are “effluent limitations,” and that it therefore lacked jurisdiction under § 509 of the Act to review EPA’s approval of New York State’s revised water quality standards. Nothing in that opinion implies that water quality standards cannot become effluent limitations, once they are applied to an individual discharger by inclusion in an NPDES permit. . The company also argues that the unreliability of temperature limitations makes it inappropriate to levy criminal sanctions for violations of this part of the permit. Inasmuch as there are no criminal sanctions before us, we have no occasion to decide that issue. . In view of our ruling that U.S. Steel’s substantive claims regarding the thermal limitations cannot be presented in this proceeding, the company suffered no prejudice from the Administrator’s ruling that it had waived its right to an adjudicatory hearing on the propriety of the thermal limitations by failing to propose its own alternative thermal limitations. . In its reply brief U.S. Steel objects to requiring this demonstration before the validity of the thermal limitations is determined, pointing out that Congress apparently contemplated that the thermal discharge demonstration would be made prior to the issuance of an NPDES permit. See Leg. Hist., at 263-264. Despite the lateness of this claim, we observe that, in effect, U.S. Steel was given this opportunity, inasmuch as the original permit required the company to make its showing before the thermal limitations become effective on July 1, 1977. . Although we conclude we were not required to do so, we have in this, our first, permit review, examined those limitations to which U.S. Steel objected before the Regional Administrator, in the light of the Regional Administrator’s decision and the other parts of the record that the appendixes have brought before us. Our conclusion from this examination is that the technology-based permit limitations are on the whole amply supported by the evidence and are a reasonable exercise of the Administrator’s authority under the Act. A summary of the analysis on which this conclusion is based appears in the unpublished order filed with this opinion. . Nearly 500 samples were taken from each of two process-water outfalls and over 200 from each of two others. At each of the other 15 outfalls approximately 100 samples were taken. The measurements taken at these outfalls were used to calculate two different values: a daily average (computed by dividing the total discharge by weight in a month by the number of days that month on which measurements were taken) and a daily maximum (the total discharge by weight in any one calendar day). . They would also allow discharges on a regular basis far in excess of those that have been normal in the past, even though EPA has not acknowledged the inevitability of such “excursions” or computed the likelihood or frequency of their occurrence at Gary Works. Compare FMC Corp. v. Train, 539 F.2d 973, 985-986 (4th Cir. 1976). Nor has U. S. Steel made a showing as to a reasonable “excursion” frequency, if any, at Gary Works. . As McDermott testified, although the “first flush” from a major rainfall adversely affects the performance of the pressure filters by sharply increasing the volume of water passing through them, the lagoons and clarifiers, which retain water for a greater length of time, are essentially unaffected by such a storm. . Although Congress contemplated that EPA would first issue § 304 guidelines and then follow with § 301 effluent limitations, time pressures forced the agency to combine the two stages. See duPont v. Train, supra, 430 U.S. at 122-125, 97 S.Ct. at 972-973. In this case the Phase I Iron and Steel Guidelines for the Blast Furnace (Iron) Subcategory, 40 C.F.R. § 420.40, et seq., subpart D of part 420, represent EPA’s § 304(b) BPT determinations and its § 301 effluent limitations. . U. S. Steel also complains that it was improper to issue the NPDES permit without holding a hearing pursuant to § 302. That claim, however, is premised on its belief that blast-furnace recycling is not BPT. In view of our conclusion below that it is, we need not address U. S. Steel’s claim for a § 302 hearing. Perforce neither do we consider EPA’s response that, whatever our ruling on recycling, § 302 is only triggered if limitations more stringent than those required under the § 302(b)(2) directive that the “best available technology economically achievable” be in place by July 1, 1983 are to be applied in order to attain “a balanced population” of aquatic life. See § 302(c). . As the Fourth Circuit noted in its opinion in the duPont case, 541 F.2d 1018 at 1028. . See, e. g., 40 C.F.R. § 420.42. Persons other than the discharger could also seek a variance, and the limitations in an NPDES permit could be either more or less stringent than those in the guidelines. Cf. Natural Resources Defense Council, Inc. v. EPA, 537 F.2d 642 (2d Cir. 1976). . The Third Circuit reviewed these materials in some detail in its AISI (I) decision. See particularly 526 F.2d at 1047-1055. . Recycling itself also reduces the level of certain pollutants in the waste water. The Development Document notes that a “loss of phenol is inherent in the operation of a recycle system,” apparently due to the lowered water temperature in the cooling tower. EPA witness Dr. Bramer also observed that, unless the pH is allowed to rise above 8, some loss of cyanide may also occur in the cooling tower. Documents filed with • U. S. Steel’s renewed stay request also support this point. Indeed, the guidelines set effluent limitations for ammonia, cyanide, and phenol attainable simply by installing blast-furnace recycling. The fallout of these chemicals may, however, result in the build-up of solids, or scaling, in the cooling tower, thereby reducing the efficiency of the recycling system itself. . Spyropoulos also testified that recycling systems are presently in operation at the Inland and Interlake Steel plants in Chicago, and, apparently, are on order for the Republic Steel plant in Canton, Ohio, and the Wheeling-Pittsburgh Steel plant at Steubenville North, Ohio. The State of Illinois, in a brief as amicus curiae, points out that, in addition to these plants, recycling is in use at U. S. Steel’s own Waukegan Works, and at Republic Steel’s South Chicago Mill and Youngstown Sheet & Tube Company’s East Chicago Mill. . TSS discharges can be reduced by up to 95 percent through the use of recycling. Under the permit, TSS discharges from the Gary Works would be reduced from the present 29,-000 to 1,688 pounds per day, or just over 94 percent. This reduction would be achieved at a capital cost of roughly $8.6 million, less than 3.5 percent of the $246 million capital replacement cost of the Gary Works facility. The operating cost of the system would be about $6,000 a day. . The extent of this increase is not clear from the record. At oral argument counsel for U. S. Steel stated that recycling would generate only 200 additional pounds of sulphate each day. Unless counsel misspoke, this issue appears trivial, inasmuch as this figure is less than one quarter of one percent of the daily average limitation on sulphate discharges from the plant. In view of the vigor with which the company has pressed this argument, we assume that larger sulphate discharges are involved and treat the argument on its merits. . Even if they were, the 1972 Amendments to the FWPCA were not intended to allow an increase in the level of pollutants discharged. See, e. g., the language in § 303(c)(2), stating that one of the purposes of revised water quality standards is to “enhance the quality of water,” and 40 C.F.R. § 130.17, regarding the emphasis upon nondegradation of existing water quality. See also Hines, A Decade of Nondegradation Policy in Congress and the Courts: The Erratic Pursuit of Clean Air and Clean Water, 62 Iowa L. Rev. 643 (1977). Cf. Sierra Club v. EPA, 176 U.S.App.D.C. 335, 540 F.2d 1114 (1976), cert. granted, sub. nom. Montana Power Co. v. EPA,-U.S.-, 97 S.Ct. 1597, 51 L.Ed.2d 802 (1977), and City of Highland Park v. Train, 519 F.2d 681 (7th Cir. 1975), cert. denied, 424 U.S. 927, 96 S.Ct. 1141, 47 L.Ed.2d 337 (1976). . A variation of this argument is considered infra, Part IV, E, with respect to U. S. Steel’s contention that the compliance schedules in the permit are arbitrary. . Our interpretation of this Act is “guided by” the Supreme Court’s interpretation of the analogous Clean Air Act. See American Meat Inst. v. EPA, supra, 526 F.2d at 449-450. . H.R. 11896, proposed § 301(b)(5). . This holding implicitly disposes of U. S. Steel’s most recently filed motion for a stay of the interim limitations at outfall #017. . 40 C.F.R. § 401.1 l(p) defines “blowdown.” . Although paragraphs 12 and 22 of the permit apparently contemplate modification only in the direction of greater stringency, EPA is certainly not foreclosed from temporarily adjusting permit limitations to accommodate a situation such as that described in the text. Alternatively, U.S. Steel may seek a new permit, as is provided in the regulations concerning “facility expansions, production increases, or process modifications which result in new or increased discharges of pollutants . . .” 40 C.F.R. § 125.22(a)(1). . In fact the guidelines reflect such a determination, based on recycling flows somewhat higher than those proposed for the Gary Works, with respect to cyanide, phenol, and ammonia. See 40 C.F.R. § 420.42. . EPA proposed a system combining neutralization, two-stage oxidation, clarification, pressure filters, and adsorption. . In fact, EPA suggested at the remand hearing that TSS discharges eventually could be reduced to 141 lbs. daily average and 211 lbs. daily maximum, by reducing blowdown to the 125 gal/ton rate discussed in the Development Document for Phase I guidelines and approved for new sources and, effective in 1983, for existing sources. See AISI v. EPA, supra, 526 F.2d at 1063. . See note 24, supra. . Representative Clausen’s discussion of § 316(b) describes it as applying to steam-electric generating plants, apparently excluding any other industry which employs cooling-water intake structures. Leg.Hist., at 264. That remark, however, follows closely his reference to such plants, as an example, when explaining why the special treatment of thermal discharges established by § 316(a) was appropriate. Leg.Hist., at 263. The legislative history is thus ambiguous at best. . See Part IV, C, infra. See also § 104(t) of the Act, which requires the Administrator to study thermal discharges and to evaluate alternative methods of controlling them, in order to implement § 316. . The twelve primarily cooling-water outfalls now monitored once every eight days will be monitored once a week. Three of the seven primarily process-water outfalls will be monitored on a daily basis, while the other four will remain at the present frequency of five times in eight days. A variety of pollutants will be monitored at each outfall, depending upon the composition of its present discharges. . The permit limits U.S. Steel to its current discharges into the well, and requires continuous monitoring of flow, temperature, pH, and injection and annular pressure, as well as daily monitoring for chloride, chromium, sulphate, and dissolved (and total) iron discharges. The permit also requires U.S. Steel to submit maps, descriptions, and geologic and engineering data on the deep well, and to prepare an extensive report regarding waste-injection well disposals, in order to enable EPA to evaluate the company’s practices. . Although U.S. Steel argued before the Regional Administrator that the specific permit conditions imposed on deep-well discharges were unreasonable, it has limited its challenge in this court to EPA’s authority to. regulate deep wells. . This decision is distinguishable in any event. Inasmuch as GAF’s proposed injection disposal would not have violated any established effluent limitations or permit conditions, and therefore no enforcement action could have been brought under § 309, there was an alternative basis for the court’s judgment. In our case, of course, there is a permit condition regarding well disposal. Furthermore, EPA’s attempt to regulate GAF’s discharges was not part of an overall effort to limit surface discharges. Finally, as the district court itself pointed out, GAF had obtained a permit for the proposed discharges from the Texas Water Quality Board. Compare United States v. Arnaco Steel Corp., 333 F.Supp. 1073 (S.D.Tex. 1971). . This interpretation accords with that of EPA’s General Counsel. See, e. g., Decision of the General Counsel No. 6 (April 8, 1975). For another discussion of this issue see Wilson, Ground Waters: Are They Beneath the Reach of the Federal Water Pollution Control Act Amendments?" 5 Environmental Affairs 545 (1976). See also H.R.Rep.No. 93-1185, 93d Cong., 2d Sess. (1974); U.S.Code Cong. & Admin.News 1974, p. 6454, stating that one reason for adopting the Safe Drinking Water Act, 88 Stat. 1660 (1974), was that the FWPCA “may not authorize any regulation of deep well injection of wastes which is not carried out in conjunction with a discharge into navigable waters.” Id. at 4; U.S.Code Cong. & Admin. News 1974, p. 6457. In its brief, U.S. Steel argues that there is no jurisdiction under FWPCA to regulate deep wells that do not discharge into navigable waters and points to “unrefuted testimony at the adjudicatory hearing” that its deep well injection “is into ground waters which do not connect into or otherwise affect surface waters.” EPA, however, was not bound by this testimony and could have properly concluded that too little is known about the effects of discharges into ground waters to justify allowing increases in them. As to the company’s legal argument, see the analysis of the statute and the legislative history in the text, infra. . There are two conditions to this exception: (1) approval by the state and (2) a determination, also by the state, that the disposal “will not result in the degradation of ground or surface water resources.” . The Senate bill was eventually enacted into law. It was accompanied by S.Rep.No.92-414, 92nd Cong., 1st Sess. (1971); U.S.Code Cong. & Admin.News 1972, p. 3668. . Leg. Hist., at 275. Representative Kemp also stated that, notwithstanding this coverage, he still planned to press for his own bill, “which would more comprehensively control the subsurface injection of wastes.” Leg. Hist., at 275. . Leg. Hist., at 818. This is H.Rep.No.92-911, 92d Cong., 2d Sess. (1972), which accompanied the House bill, H.R. 11896. . In fact, even that legislative history on which U.S. Steel and the GAF court chiefly rely supports our interpretation of the Act. U.S. Steel urges that the rejection by the House of an amendment which would have established extensive federal regulation of ground waters demonstrates that EPA lacks authority over the waste-injection well. Representative Aspin’s proposed amendment, however, had two purposes: in addition to establishing federal regulatory authority over all ground waters, it would have deleted the exception for oil-and-gas-related injections contained in § 502(6). The debate on this amendment clearly demonstrates that it was intended to “eliminate the inconsistency between the way we treat oil companies in this bill and the way we treat other companies. Oil companies and other industries can pollute ground water, through the operation of what are called ‘waste injection wells.’ . . . The steel industry sinks wells into the ground to get rid of waste. The oil industry does it . . . [Yet] waste injection wells of the steel industry are covered. The waste injection wells of every industry except oil are covered.” (Emphasis supplied.) Remarks of Rep. Aspin, Leg. Hist., at 589-590. The significance of this “exception” becomes clear when one realizes that 99 percent of all domestic waste-injection wells are oil industry wells. Leg. Hist., at 590. Representative Roberts explained his opposition to the amendment by pointing out that “we have more stringent regulations now on the oil industry than we could ever impose through this legislation.” Thus, although the steel companies “come under the regulations” as Representative Aspin noted, the oil industry is “already . . . regulated in a similar fashion . . . .” Leg. Hist., at 593. The House debate on the amendment, therefore, confirms our conclusion that the Act contemplates state and federal restrictions on waste disposals into wells. . Schedules are established concerning the thermal limitations, the deep well, the plant-wide weight limits on the discharges of six chemicals into the Grand Calumet River, the elimination of all discharges other than non-contact cooling water from outfalls ##021 and 033, and the specified effluent limitations set for eight other outfalls, # # 007, 015, 017, 018, 034, 037, 038, and 039. . At least with respect to dates that had already passed before the effective date of the permit, no successful criminal proceeding could be brought under § 309(c), for lack of the requisite mental state. . U.S. Steel’s other claims of arbitrariness, viz., impossibility of compliance and improper effluent limitations underlying the schedules, merely repeat arguments rejected earlier in this opinion or refuted by our examination in the order of the limitations set for specific outfalls. . Unless Congress amends the statute, as it may do this year. See National Commission on Water Quality, Report to Congress 15-17 (1976), and Comptroller General, Implementing the National Water Pollution Control Permit Program: Progress and Problems (February 1976) . . U.S. Steel relies upon an unreported ruling by the Second Circuit, which stayed the enforceability of certain effluent limitations and guidelines (subparts B and C of 40 C.F.R. part 409) for over a year. That was, however, simply an order granting a stay pending oral argument. The court’s final decision in the case did not even mention the stay. California & Hawaiian Sugar Co. v. EPA, 553 F.2d 280 (2d Cir. 1977) . In any event, we prefer the view of the Third Circuit. . As the Supreme Court observed in connection with the Clean Air Act, see Union Electric Co. v. EPA, supra, 427 U.S. at 268, 96 S.Ct. 2518, § 309(a) gives the Administrator the option of issuing a compliance order rather than instituting civil or criminal enforcement proceedings. See also Bethlehem Steel Corp. v. Train, supra, 544 F.2d at 659-660.

Detroit Edison Co. v. United States Environmental Protection Agency

JOHN W. PECK, Circuit Judge. This case is before us upon petition by the Detroit Edison Company for judicial review pursuant to § 307(b)(1) of the Clean Air Act, 42 U.S.C. § 1857h-5(b)(1) (1970), of a May 14, 1973, regulation promulgated by the Administra» tor of the Environmental Protection Agency (EPA). The May 1973 regulation specifically amended an earlier EPA regulation promulgated in October of 1972 although the subject matter thereof had been neither previously published nor the subject of a public hearing. The EPA terms the amendment a “clarification” of the October 1972 regulation, while the petitioner Detroit Edison characterizes it as a “revision” to the State’s plan, but more than a matter of semantics is involved. A revision would necessitate compliance with the necessary procedural requirements in promulgating the May 1973 regulation, while a mere clarification would not. We conclude that the amendment amounted to a revision. In early 1972, pursuant to the requirements of § 110 of the Clean Air Act, 42 U.S.C. § 1857c-5(a) (1970), the State of Michigan submitted a plan describing its implementation of Federal primary (health-related) and secondary (welfare-related) ambient air quality standards. The EPA Administrator reviewed the plan and in May of 1972 timely approved it with certain exceptions. 37 Fed.Reg. 10842 (1972). Included in the plan as submitted was a provision referred to as “R 336.49.” This provision is entitled “Emission of sulfur dioxide from power plants” and R 336.49(1) thereof details that it shall be unlawful to burn fuel whose sulfur content exceeds the levels established for July 1975 and July 1978 by a Table 3 (of R 336.-49(7)) or whose sulfur dioxide emissions exceed the levels of Table 4 (of R 336.49(7)). R 336.49(1) further provides that variances or exemptions to the requirements of Tables 3 and 4 may be approved if the emission source furnishes evidence no later than July 1, 1973, that it does not create or contribute an ambient level of sulfur dioxide in excess of the applicable national ambient air quality standards. R 336.49(3) provides that persons operating sources in July 1973 which exceed either the Table 4 emission level or the July 1978 sulfur content level of Table 3 must submit written compliance schedules no later than January 1,1974. The submission of individual compliance schedules by January 1, 1974, was one of the Administrator’s objections to the Michigan plan for the reason that this date was later than the due date for the State’s first semiannual progress report on the implementation plan. 37 Fed.Reg. 10842, 10873 (1972). According to 40 C.F.R. § 51.15(a)(2), individual compliance schedules must be submitted no later than the due date for that first progress report. In addition, in his comments relevant to all the states’ plans, the Administrator also objected to the several proposals regarding variances : “Optional Control “Several State plans include regulations under which a source owner or operator could be exempt from compliance with an applicable emission limitation if he can show that emissions from the source will not interfere with attainment or maintenance of the national standards. The Administrator neither approves nor disapproves such optional control features. States are advised, however, that action taken to allow any such exemptions will constitute revision of a State plan and therefore will be subject at that time to the Administrator’s approval.” 37 Fed.Reg. 10842,10845-46 (1972). Subsequently, pursuant to § 110(c) of the Act, 42 U.S.C. § 1857c-5(c) (1970), the Administrator published his proposed revisions for those portions of the plan that he disapproved. 37 Fed.Reg. 11826, 11835-36 (June 14, 1972). Public hearings followed on the EPA proposals with the result that in October of 1972 revised regulations were promulgated. 37 Fed.Reg. 23085, 23089 (October 28, 1972). The revised regulations required, in relevant part, that: “§ 52.1175 Compliance schedules. * -X- * “(b) Federal compliance schedule. (1) Except as provided in subparagraph (2) of this paragraph, the owner or operator of a stationary source subject to R 336.49 . . . shall comply with such regulation on, or before, December 31, 1973 .... * * * “(2) Any owner or operator of a stationary source subject to subparagraph (1) of this paragraph may, no later than 120 days following the effective date of this paragraph, submit to the Administrator for approval a proposed compliance schedule that demonstrates compliance with R 336.-49 as expeditiously as practicable but no later than the dates specified in R 336.49(7) . . . . ” * * * This October 1972 regulation was not challenged by Detroit Edison and is not being challenged here. After the October 1972 regulation was published, the EPA claimed that it detected misinterpretations of the regulation and accordingly on May 14, 1973, published an amendment to the October 1972 regulation that replaced the general reference to compliance with R 336.49 with the specific reference to “the emission limitations in table 3 or 4 of R 336.49.” In addition, the date for achieving compliance was extended from December 31, 1973 to January 31, 1974, for the claimed purpose of maintaining consistency with the provisions of 40 C. F.R. § 51.15(c). 38 Fed.Reg. 12711, 12712-13 (1972). The petitioner’s position can be summarized as follows. Under R 336.49 the sulfur limitations are not effective until July 1, 1975 and July 1, 1978, and those limitations do not apply until 1980 to sources obtaining a variance. Under the May 1973 regulation, all sources not submitting compliance schedules are required to comply with the 1978 sulfur limitations by January 31, 1974. In addition, the 1980 compliance date for sources obtaining a variance is eliminated. Petitioner presently has an application for a variance pending. In examining the contentions of the parties, we first observe that the actual emission limitations are set forth in Tables 3 and 4 of R 336.49. The other parts of R 336.49 refer to schedules for achieving compliance with the limitations. In this respect, the EPA argues that there are three alternative courses of action available to emission sources, namely: (1) to obtain a variance from the requirements pursuant to R 336.-49(1) ; (2) to submit a certification to the EPA that the source is, or will be by December 31, 1973, in compliance with the requirements; or, (3) to submit to the EPA a compliance schedule showing how compliance with Table 3 or 4 will be accomplished. Although our reading of the regulations as amended through October of 1972 indicates that these alternatives are available to the petitioner, we cannot find authority therefore from a reading of the regulations as amended in May of 1973. It is well settled that an agency’s interpretation of its regulations is properly entitled to deference by the courts unless it is plainly erroneous or inconsistent with the regulations. Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Gulf Oil Corp. v. Hickel, 140 U.S.App.D.C. 368, 435 F.2d 440 (1970). But by changing the language of compliance to specify the emission limitations of Tables 3 and 4, we can only conclude that the May 1973 regulation specifically excludes the variance alternative indicated at R 336.-49(1) from its purview. In contrast, the October 1972 regulation, by its broad language in referring to the entire R 336.49, encompasses the alternative of obtaining a variance. If, as the EPA would have us believe, the May regulation does not in fact alter the terms of the October regulation and allows the petitioner to proceed as if three alternatives exist, then we are faced with the fact that there is no controversy before us. It would follow then that the May regulation is unnecessary except as regards the change in the compliance date which is apparently conceded by the petitioner to be a valid administrative change. Giving merely the meaning its plain language imparts, it is clear that the May 1973 regulation in fact deletes the variance alternative from the provisions of the implementation plan and thus effects a substantial change thereto. Since the Administrator has not complied with the informal rulemaking requirements of the Administrative Procedure Act (APA), 5 U.S.C. § 553 (1967), the promulgation of the May 1973 regulation must be vacated and the case remanded with instructions to comply with the APA. Buckeye Power, Inc. v. EPA, 481 F.2d 162 (6th Cir. 1973). The EPA urges that certain statutory exceptions to APA requirements are applicable but our view is that the mere invocation by EPA of the statutory exceptions for interpretative rules is not dispositive as to whether the general rulemaking requirements of the APA are applicable. “The particular label placed upon [a regulation] is not necessarily conclusive, for it is the substance of what the Commission has purported to do and has done which is decisive.” Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 416, 62 S.Ct. 1194, 1200, 86 L.Ed. 1563 (1942). Neither can the Administrator justify the lack of notice and opportunity for public comment on the grounds that such is “impracticable, unnecessary, or contrary to the public interest.” This exception, stated in 5 U.S.C. § 553(b) (B), is inapplicable as well because of the substantial impact of the regulation in issue. And the EPA has not argued that promulgation of the regulation was based on purposes of exigency. The approval of the May 14, 1973, regulation by the Administrator is vacated and the cause is remanded to the Agency. . For a discussion of the history and structure of the Olean Air Act, see Buckeye Power, Inc. v. EPA, 481 F.2d 162, 165-167 (6th Cir. 1973). . R 336.49. Emission of sulfur dioxide from power.plants. Rule 49. (1) It is unlawful for a person to burn in a power plant fuel which does not comply with either the sulfur content limitation of table 3, or which when burned results in sulfur dioxide emissions exceeding an equivalent emission rate as shown in table 4, unless the following conditions are met: (a) The source of fuel burning is not subject to federal emission standards for new stationary sources. (b) An installation permit, if required by part 2, has been approved by the commission before August 17, 1971. (c) The user furnishes evidence that the fuel burning does not create, or contribute to, an ambient level of sulfur dioxide in excess of the applicable ambient air quality standards. The evidence shall be furnished to the commission not later than July 1, 1973 and shall include 12 months of air quality data or equivalent information satisfactory to the commission. The method of obtaining the evidence shall be approved by the commission or its representatives who shall be given the opportunity to calibrate and check the performance of monitors without prior notification of the owner. (d) The user is operating in compliance with an order, stipulation or variance from the commission. (2) Notwithstanding the provisions of subrule (1), an exception from the limitations of table 3 will not be permitted after January 1, 1980 unless specific authorization is granted by the commission. (3) A person responsible for operation of a source which on July 1, 1973 is using fuel with a sulfur content in excess of that allowed to be burned on July 1, 1978 as listed in table 3, or which on July 1, 1973 is emitting sulfur dioxide in excess of the equivalent emission for that fuel as shown in table 4, shall submit to the commission not later than January 1, 1974 a written program for compliance with this rule. This requirement does not apply to a source for which the commission has approved an exception to table 3 under the provisions of subrule (1). $ % $ * . sfc $ (7) The use of fuels having sulfur contents as set forth in this rule shall not allow degradation in the mass rate of particulate emission unless otherwise authorized by the commission. The commission may require source emission tests which may be performed by or under the supervision of the commission at the expense of the owners and may require the submission of reports to the commission both before and after changes are made in the sulfur content in fuel. . The time to challenge the October regulation has expired. See, § 307 (b) (1) of the Act, 42 U.S.C.§ 1857h-5(b)(1) (1970). . See footnote 2, supra. Advance approval of variances was specifically avoided by the Administrator, 37 Fed.Reg. 10842, 10845-46 (1972), for the apparent reason that each variance must be evaluated as a revision to the basic implementation plan and must pass the same scrutiny as a revision pursuant to 40 C.F.R. § 51.6 (1972). . See § 52.1175(b)(1), 37 Fed.Reg. 23085, 23089 (October 28,1972). . See § 52.1175(b) (2), id. . We are not unaware of tbe fact that although the EPA has stated that it would not bring an action against the petitioner for Federal enforcement pursuant to § 113 of the Act, 42 U.S.C. § 1857c-8 (1970), the petitioner is subject to a civil action under § 304 of the Act, 42 U.S.C. § 1857h-2 (1970).

Lands Council v. McNair

Opinion by Judge FERGUSON; Concurrence by Judge MILAN D. SMITH, JR.; Concurrence by Judge FERGUSON. FERGUSON, Circuit Judge: The Lands Council and the Wild West Institute (collectively, “Lands Council”) appeal the district court’s denial of their motion for a preliminary injunction to halt the Mission Brush Project (“Project”). Under the Project, the United States Forest Service (“Forest Service” or “Service”) plans to allow the selective logging of 3,829 acres of forest in the Idaho Panhandle National Forests (“IPNF”) for the purpose of restoring portions of the forest to historic conditions. Lands Council alleges that the Project violates the Administrative Procedure Act (APA), 5 U.S.C. § 706 et seq., the National Forest Management Act (NFMA), 16 U.S.C. § 1600 et seq., the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and Standard 10(b) of the IPNF Forest Plan. The district court held that Lands Council was unlikely to prevail on its claims and that the balance of hardships favored the Forest Service. We reverse. FACTUAL BACKGROUND The Mission Brush Area The Project assessment area is in the Bonners Ferry Ranger District in the northern portion of the IPNF. The area is home to abundant plant and animal species, including grizzly bears, Canada lynx, and flammulated owls. Due to decades of unsustainable forestry practices, however, the area has deviated significantly from its historical composition and structure, which consisted of open ponderosa pine and Douglas-fir stands. For decades, logging companies cut down these old growth trees and, along with the Forest Service, suppressed the frequent, low-intensity fires that formerly contributed to the cyclical process of healthy forest ecology. As a result, much of the historic forest conditions have been replaced by dense, crowded stands of younger Douglas-firs and other mid- and late-successional species. These overcrowded forests, dominated by shade-tolerant trees, can lead to insect infestations, diseases, and stand-replacing fires. According to the Forest Service, “the densely stocked stands we see today are causing a general health and vigor decline in all tree species.” U.S. Forest Serv., Mission Brush Supplemental Final Environmental Impact Statement 3-15 (2006) [hereinafter SFEIS]. The Mission Brush Project The Project would perform silvicultural treatments and commercial logging on 3,829 acres of forest, including restoration cutting within 277 acres of old growth stands, with the goal of trending the forest toward historic conditions. The Forest Service has divided the Project into three commercial timber sales, the Brushy Mission Sale, the Haller Down Sale, and the Mission Fly By Sale, comprising in total 23.5 million board feet of timber. The first two sales have been sold to private timber companies, but there were no bids on the third. The Service’s contracting officer has stated that he does not intend to award the Mission Fly By Sale until this litigation concludes, although logging under the Brushy Mission and Haller Down sales began several months ago. PROCEDURAL HISTORY In June 2004, the Forest Service released the Mission Brush Final Environmental Impact Statement (“EIS”) and the Record of Decision, which adopted the Project. Lands Council, along with several other environmental groups, appealed to the Regional Forester, who upheld the Project in August 2004 but ordered the preparation of a supplemental EIS in light of our decision in Lands Council v. Powell (Lands Council I), 379 F.3d 738 (9th Cir.2004), amended by 395 F.3d 1019 (2005). In April 2006, the Forest Service released its Supplemental Final EIS (“SFEIS”) and Record of Decision (“ROD”). Lands Council filed an administrative appeal, which the Forest Service denied in July 2006. In October 2006, Lands Council filed suit challenging the Project in the U.S. District Court for the District of Idaho. Lands Council filed a motion for a temporary restraining order and preliminary injunction to halt the Project. The district court denied the motion on December 18, 2006, and Lands Council timely appealed. DISCUSSION I. Preliminary Injunction Standard We review a district court’s denial of a preliminary injunction for an abuse of discretion. Earth Island Inst. v. U.S. Forest Serv. (Earth Island Inst. II), 442 F.3d 1147, 1156 (9th Cir.2006). A district court abuses its discretion if it “base[s] its decision on an erroneous legal standard or clearly erroneous findings of fact.” Id. A preliminary injunction should issue when the plaintiff shows “either: (1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) that serious questions going to the merits were raised and the balance of hardships tips sharply in [the plaintiffs] favor.” Lands Council v. Martin (Lands Council II), 479 F.3d 636, 639 (9th Cir.2007) (quoting Clear Channel Outdoor Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir.2003)). These two alternatives are “extremes of a single continuum” in which “the greater the relative hardship to the party seeking the preliminary injunction, the less probability of success must be shown.” Clear Channel Outdoor Inc., 340 F.3d at 813 (internal punctuation and quotation omitted). II. Likelihood of Success on the Merits National Forest Management Act NFMA requires the Forest Service to develop a forest plan for each unit of the National Forest System. 16 U.S.C. § 1604(a). These plans must include provisions for public participation, while adopting “a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic, and other sciences.” § 1604(b), (d). Once a forest plan is developed, subsequent agency actions must be consistent with the plan. § 1604(f). In addition to these procedural components, NFMA imposes substantive requirements on the Forest Service. In particular, “the forest plan must comply with substantive requirements of the Forest Act designed to ensure continued diversity of plant and animal communities and the continued viability of wildlife in the forest.” Idaho Sporting Cong. v. Rittenhouse, 305 F.3d 957, 961 (9th Cir.2002) (citing 16 U.S.C. § 1604(g)(3)(B)). The Forest Service must also “demonstrate the reliability of its scientific methodology.” Ecology Ctr. v. Austin, 430 F.3d 1057, 1064 (9th Cir.2005). A reliable scientific methodology is one that the Forest Service has “verified with observation” and “on the ground analysis.” Lands Council I, 395 F.3d at 1035. The Forest Service may not rely on a methodology that “is predicated on an unverified hypothesis.” Ecology Ctr., 430 F.3d at 1064. The Forest Service has not proven the reliability of its scientific methodology with regard to wildlife habitat restoration in the Mission Brush Project. In particular, the Service has failed to demonstrate that the Project will not harm the flammu-lated owl, the northern goshawk, the fisher, and the western toad, all of whom the Forest Service has designated as “sensitive species” whose viability is of special concern. See Friends of the Clearwater v. Dombeck, 222 F.3d 552, 556 n. 2 (9th Cir.2000) (explaining “sensitive species” designation). As in Ecology Center, the Forest Service is relying on the “unverified hypothesis” that “treating old-growth forest is beneficial to dependent species.” Ecology Ctr., 430 F.3d at 1064. In Ecology Center, the Forest Service, as part of another project, sought to engage in rehabilitative treatment of old growth stands “to correct uncharacteristic forest development resulting from years of fire suppression.” Id. at 1063. We concluded that the Forest Service did “not offer proof that the proposed treatment benefits — or at least does not harm — old-growth dependent species.” Id. We held that the Forest Service’s methodology was unreliable since it had not been verified, and that the treatments therefore violated NFMA. Id. at 1063-64. The Forest Service argues that the present case is distinguishable from Ecology Center because the Service has provided sufficient scientific data on the effects of the Project on wildlife habitat. None of the documents it cites, however, demonstrates the reliability of the Forest Service’s hypothesis that restoration treatment will benefit dependent species. The Forest Service relies primarily on the Dawson Ridge Study, Dawson Ridge Flammulated Owl Habitat Monitoring (2006) [hereinafter Dawson Ridge Study], the only study it has conducted since our decision in Ecology Center. The Dawson Ridge Study monitored a “relatively small area” of flammulated owl habitat: five 1/5 acre plots in an area totaling only eighteen acres. Id. at 2-3. The researchers received a single response in the 2006 survey. Id. at 1. Based on this solitary hoot, and the fact that the area had been logged in 2000 and underburned in 2002, the report concluded that “owls are using the area after harvest.” Id. at 3. The report admitted that it was “inappropriate” to conclude that the treatments had improved owl habitat, but found it “encouraging” that an owl response had been received in the area. Id. Such responses, it concluded, “imply” that the harvesting practices “are at least maintaining suitable habitat.” Id. This report is insufficient to meet the requirements of Ecology Center. See 430 F.3d at 1063(single report of observation of bird species in formerly-treated old growth stand was insufficient to prove reliability of scientific methodology). Lands Council rightly points out that the Dawson Ridge Study made no ultimate conclusion about one of the underlying hypotheses of the Project: “that treating old-growth forest is beneficial to dependent species.” Ecology Ctr., 430 F.3d at 1064. The study also says nothing about whether such treatment can create suitable habitat that dependent species will actually use. Its conclusion that such treatment could maintain habitat is circumspect at best. By its own statement, there is merely an “encouraging” “implication].” Dawson Ridge Study at 3. This is hardly sufficient to justify “grant[ing][the Forest Service] the license to continue treating old-growth forests while excusing it from ever having to verify that such treatment is not harmful.” Ecology Ctr., 430 F.3d at 1064. The other studies fall even shorter of meeting the Ecology Center standards. In none of those studies was any observation made of the actual dependent species in order to determine whether the species will use the habitat if the Forest Service engages in the process it proposes. Compare R. Richard Howie and Ralph Ritcey, Distribution, Habitat Selection, and Densities of Flammulated Owls in British Columbia, USDA Forest Serv. General Technical Report RM-142 (1987) (twenty-year-old study from Canadian forest) with Lands Council I, 395 F.3d at 1034, 1035, 1031(holding that Forest Service methodology was unreliable because it did not “walk ... the land,” it relied on a “model with no on-site inspection,” and its data was “stale”). Other documents relied on by the Forest Service are not studies at all, but rather position papers and “conservation plans.” See, e.g., Montana Partners in Flight, Montana Bird Conservation Plan (2000); Idaho Partners in Flight, Idaho Bird Conservation Plan (2000). These documents are not “on the ground analysis” sufficient to prove the reliability of the Project’s methodology. Lands Council I, 395 F.3d at 1035. Accordingly, the Forest Service has not demonstrated the reliability of its methodology. We conclude that Lands Council was, therefore, likely to succeed on its NFMA claim. National Environmental Policy Act NEPA requires federal agencies to take a “hard look” at the potential environmental impacts of their actions. Idaho Sporting Cong., 305 F.3d at 963. An agency must prepare a detailed EIS for each action “significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). The EIS must “provide full and fair discussion of significant environmental impacts” so as to “inform decision-makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.” 40 C.F.R. § 1502.1. The EIS must “be supported by evidence that the agency has made the necessary environmental analyses,” id., and must “address in [a] meaningful way the various uncertainties surrounding the scientific evidence.” Ecology Ctr., 480 F.3d at 1065 (quoting Seattle Audubon Soc’y v. Espy, 998 F.2d 699, 704 (9th Cir.1993)). Lands Council contends that the Project violates NEPA because the Forest Service failed to include a full discussion of the scientific uncertainty surrounding its strategy for improving wildlife habitat. For the reasons already stated, supra at 776-77, we agree. As in Ecology Center, “[t]he EIS ... treats the prediction that treatment will benefit old-growth dependent species as a fact instead of an untested and debated hypothesis.” Id. In responding to the public comment that the Service had “failed to [cjite any evidence that its managing for old growth habitat strategy will improve old growth species habitat over the short-term or long-term,” the SFEIS does not address the scientific uncertainty described above, nor does it cite the sources now relied on by the Forest Service. SFEIS at F-3. The SFEIS cites only sources discussing the historical conditions of the forest, the role of fire in the forest’s ecology, and the health of old growth trees following treatment. Id. There is no discussion of the uncertainties regarding wildlife and then-use of these habitats following treatment. Id. In fact, the SFEIS’s direct and indirect effects analysis simply “assumes that active management through regeneration and selective tree cutting can help restore natural processes in an ecological system.” SFEIS at 4-68 (emphasis added). For these reasons, Lands Council was likely to succeed on its NEPA claim. IPNF Plan Standard 10(b) NFMA requires the Forest Service to comply with the forest management plan for each national forest. 16 U.S.C. § 1604(i). Standard 10(b) of the IPNF Forest Plan requires the Forest Service to maintain at least ten percent old growth throughout the forest. IPNF Forest Plan Standard 10(b). Lands Council contends that the IPNF is not currently meeting the ten percent requirement and that the Forest Service therefore must address how cutting mature, future old-growth trees will affect its future compliance with Standard 10(b). Lands Council bases its contention on its own report, which concluded that seventy percent of designated old growth stands did not actually meet the Forest Service’s own standards for old growth. Ellen Pick-en, The Lands Council, Lost Forests: An Investigative Report on the Old-Growth of North Idaho (2005). The Forest Service disagrees with these results. In determining the percentage of old growth in the IPNF, the Service has used two independent monitoring tools, each of which concluded that approximately twelve percent of the forest met old growth criteria. Arthur C. Zack, Review of Old Growth Assessments for the Idaho Panhandle National Forest 6 (2006) (referencing the Forest Inventory Analysis data, finding 11.8 percent old growth, and the IPNF stand map, finding 12.1 percent old growth). The Forest Service’s expert, Dr. Arthur Zack, specifically considered and evaluated Lands Council’s report, but disagreed with its methodology and conclusions. Where an agency is presented with conflicting data, it “must have discretion to rely on the reasonable opinions of its own qualified experts.” Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Accordingly, “[a]t this stage, the record does not allow us to conclude that the Forest Service acted arbitrar[il]y and capriciously in relying on its own data and discounting the alternative evidence offered by the [p]laintiffs.” Earth Island Inst. v. U.S. Forest Serv. (Earth Island Inst. I), 351 F.3d 1291, 1302 (9th Cir.2003). The Service explained the differences between its findings and those of Lands Council, and it “is entitled to use the data it collected.” Id. Accordingly, the district court properly concluded that Lands Council was not likely to succeed on the merits of its Standard 10(b) claim. III. Balance of Hardships Because Lands Council has demonstrated a strong probability of success on the merits of its NFMA and NEPA claims, “it need only show the possibility of irreparable injury if preliminary relief is not granted, and that the balance of hardships tips in its favor.” Earth Island Inst. II, 442 F.3d at 1177 (internal punctuation omitted). “Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable.” Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). In addition to balancing the hardships to the parties, we must also consider the public interest. Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1125 (9th Cir.2002). The Project, if not enjoined, would allow treatment of 2,326 acres of capable flammulated owl habitat and 202 acres of suitable flammulated owl habitat, the latter of which is more than half of the owls’ 364 current suitable habitat acres within the Project area. The Project would treat 2,503 acres of capable northern goshawk habitat and 561 acres of suitable northern goshawk habitat. It would convert 255 acres of suitable goshawk habitat to unsuitable habitat and would prevent 757 acres of capable goshawk habitat from becoming suitable. The Project would also treat 1,839 acres of capable fisher habitat and 449 acres of suitable fisher habitat. On the other side of the balance are the potential environmental harms to the forest caused by delaying the Project, as well as the potential economic harms to the local community from enjoining logging. As to the risk to the forest of delaying the project, the permanent and certain harm of violating the environmental laws outweighs the speculative harm that might result from a failure to engage in a statutorily prohibited activity. That determination was made by Congress when it enacted the statutes which prohibit the type of activity in which the Forest Service wishes to engage unless and until the Service complies with those statutes. The potential economic hardships, however, are more troubling. According to Intervenors, enjoining the project will force the timber companies that purchased the sales to lay off some or all of their workers. One of the companies employs fifteen people and the other employs twenty-two. The Project area is located in Boundary County, which has one of Idaho’s highest unemployment rates and an average wage that is below the national average. Since 2003, the county has lost two major employers (accounting for 400 jobs), including a Louisiana Pacific mill. These concerns implicate the public interest. While balancing environmental harms and economic harms is not easy, it is not unprecedented. We have held time and again that the public interest in preserving nature and avoiding irreparable environmental injury outweighs economic concerns. Earth Island Inst. II, 442 F.3d at 1177; Earth Island Inst. I, 351 F.3d at 1308-09; National Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 738 (9th Cir.2001); see also Sierra Nev. Forest Prot. Campaign v. Tippin, No. 06-00351, 2006 WL 2583036, at *21 (E.D.Cal. Sept. 6, 2006) (“The environment is a vital constituent public interest that must be recognized and protected by federal law even in the face of adverse economic consequences.”). Accordingly, Lands Council demonstrated a threat of irreparable injury sufficient to warrant granting the preliminary injunction. CONCLUSION Lands Council demonstrated a probability of success on the merits and a possibility of irreparable injury. Lands Council further showed that the balance of hardships and the public interest favored granting the preliminary injunction. For these reasons, we reverse the district court and remand for entry of a preliminary injunction of the contested portions of the Mission Brush Project. To the extent that either party believes that any further factual development is required and appropriate in light of this opinion, the district court may engage in such further factual determinations, including by way of trial, as it deems proper. The mandate shall issue forthwith. REVERSED and REMANDED. . Lands Council I involved a different project in a different area of the IPNF. 395 F.3d 1019. . The Forest Service argues that continued monitoring pursuant to the ROD will confirm the reliability of its methodology. While ongoing monitoring is certainly a good idea, this “authorize first, verify later” approach was roundly rejected in Ecology Center as inconsistent with both NFMA and NEPA. 430 F.3d at 1071. . Intervenors contend that "the proxy on proxy method” of using ' changes to old growth habitat to assess environmental effects on wildlife is a reliable methodology. However, we have never held that manufacturing wildlife habitat through invasive commercial harvesting allows the Forest Service to assume that such habitat will subsequently be occupied by the species at issue. Rather, the proxy on proxy method permits the Service to assume only that “maintaining the acreage of habitat necessary for survival would in fact assure a species’ survival.” Envtl. Prot. Info. Ctr. (EPIC)v. U.S. Forest Serv., 451 F.3d 1005, 1017 (9th Cir.2006) (emphasis added); see also Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1250 (9th Cir.2005) ("Our case law permits the Forest Service to meet the wildlife species viability requirements by preserving habitat ....”) (emphasis added); Ecology Ctr., 430 F.3d at 1064 (distinguishing between "maintaining ... old-growth habitat" and "altering the composition of old-growth habitat through an invasive process”). . Lands Council may nevertheless revisit this issue on the merits before the district court should further development on remand be appropriate. Infra at 780; see Earth Island Inst. I, 351 F.3d at 1302 ("We note, however, that if Plaintiffs are able to convince the district court that the agency unreasonably relied upon inaccurate data, they may be able to succeed on the merits of this claim.”).

Lands Council v. McNair

MILAN D. SMITH, JR., Circuit Judge, specially concurring: Ecology Center v. Austin, 430 F.3d 1057 (9th Cir.2005) is binding law in this circuit and dictates the outcome of this case. See Gen. Constr. Co. v. Castro, 401 F.3d 963, 975 (9th Cir.2005) (“[W]e are bound by decisions of prior panels unless an en banc decision, Supreme Court decision or subsequent legislation undermines those decisions.”). However, I write a separate concurrence in this case because, like Judge Margaret McKeown, I believe that Ecology Center was wrongly decided. See Ecology Ctr., 430 F.3d at 1071-78 (McKeown, dissenting). Following Ecology Center in this instant matter, compounds already serious errors of federal law because “the majority’s extension of Lands Council v. Powell, 379 F.3d 738 (9th Cir.2004), amended by 395 F.3d 1019, 1024 (9th Cir.2005), [to Ecology Center ] represents an unprecedented incursion into the administrative process and ratchets up the scrutiny we apply to the scientific and administrative judgments of the Forest Service... .[T]he majority has, in effect, displaced ‘arbitrary and capricious’ review for a more demanding standard.” Id. at 1072. In Lands Council v. Powell (Lands Council I), 379 F.3d 738 (9th Cir.2004), amended by 395 F.3d 1019 (9th Cir.2005), the court reviewed the Forest Service’s approval of a timber harvest as part of a watershed restoration project in the Idaho Panhandle National Forest (IPNF). 395 F.3d at 1024. The project was “designed to improve the aquatic, vegetative, and wildlife habitat in the Project area.” Id. at 1025. The Lands Council challenged the project’s compliance with the National Forest Management Act (NFMA) because the project was allegedly inconsistent with the IPNF Forest Plan, and because it questioned the reliability of the Forest Service’s scientific methodology underlying its analysis of disturbed soil conditions. Id. at 1032-34. The Forest Service did not take soil samples from the activity area, but instead relied on samples from other areas in the Forest and aerial photographs to determine the quality of the soil in the project area. Id. Even though our rules provided that the Forest Service was entitled to deference for its technical expertise, the Lands Council I court rejected the Forest Service’s choice of scientific methodology because it was based entirely on a spreadsheet model with no on-site inspection or verification. Id. at 1035. The court explained that “[ujnder the circumstances of this case, the Forest Service’s basic scientific methodology, to be reliable, required that the hypothesis and prediction of the model be verified with observation. The predictions of the model ... were not verified with on the ground analysis.” Id. Thus, the court held that the “Forest Service’s reliance on the spreadsheet models, unaccompanied by on-site spot verification of the model’s predictions, violated NFMA.” Id. As Judge McKeown observed, Lands Council I made “compliance with NFMA and NEPA a moving target.” Id. at 1073. Ecology Center was erroneously decided, in part, because the majority applied the court’s criticism of the Forest Service’s soil analysis in Lands Council I to its review of the Forest Service’s soil quality analysis conducted as part of the Lolo National Forest Post Burn Project. The Ecology Center majority’s reliance on Lands Council I is faulty because the Lands Council I court’s determination that “on-site spot verification” was required for soil analysis was in direct response to the specific record and circumstances of that case. As Judge McKeown explained, “there is no legal basis to conclude that the NFMA requires an on-site analysis where there is a reasonable scientific basis to uphold the legitimacy of modeling. NFMA does not impose this substantive requirement, and it cannot be derived from the procedural parameters of NEPA.” Ecology Ctr., 430 F.3d at 1073. Furthermore, the Ecology Center majority’s application of Lands Council I is also erroneous because the Forest Service did conduct on-site analysis in the activity area of the Lolo National Forest. Even if the majority had been correct in reading Lands Council I to require on-site analysis in every case, the Forest Service complied with this requirement. In fact, there are specific reports indicating that soil analysis was conducted in the activity area. Nevertheless, the majority rejected these reports on the grounds that they were “too few and of poor quality.” Id. It complained that “[t]he record provides little information that enables us to assess the reliability or significance of these reports; for example, we do not know the qualifications of the person conducting the field review, the methodology utilized, or whether the field observations confirmed or contradicted the Service’s estimates.” Id. at 1070. Judge McKeown observed that “[f]rom this judgment, we are left to conclude that not only does the court of appeals set bright-line rules, such as requiring an on-site, walk the territory inspection, but it also assesses the detail and quality of that analysis-even in the absence of contrary scientific evidence in the record.” Id. at 1073. She also noted that “Lands Council [/] does not direct us to assess the sufficiency of the Forest Service’s on-site soil quality analysis beyond the traditional arbitrary and capricious standard; it only asks us to verify that there is such an on-site sampling.” Id. at 1075. Additionally, “the [Ecology Center ] majority generalizes the ‘unverified hypothesis’ principle articulated in Lands Council [I ] beyond the soil analysis to other scientific findings made by the Forest Service. In so doing, the majority demonstrates the dangers of extending a reference-abstracted from a single technically detailed, fact-specific decision-to unrelated factual contexts.” Id. at 1076. For example, the majority applied Lands Council I to find that the Forest Service’s conclusion that treating old-growth forest is beneficial to dependent species is predicated on an unverified hypothesis. Id. at 1064. The majority criticized the Forest Service for not taking the time to test its theory that thinning of old-growth stands via commercial logging and prescribed burning would improve, or at least not harm, old-growth dependent species. Id. Judge McKeown concluded that “[a]p-parently we no longer simply determine whether the Forest Service’s methodology involves a ‘hard look’ through the use of ‘hard data,’ but now are called upon to make fine-grained judgments of its worth.” Id. at 1077. This is in direct contradiction to basic administrative law principles — “we reverse agency decisions only if they are arbitrary and capricious.” Id. “This standard of review does not direct us to literally dig in the dirt (or soil, as it were), get our fingernails dirty and flyspeek the agency’s analysis.” Id. Finally, “[t]he majority’s rationale cannot be reconciled with our case law requiring ‘[djeference to an agency’s technical expertise and experience,’ particularly ‘with respect to questions involving engineering and scientific matters.’ ” Id. (quoting United States v. Alpine Land & Reservoir Co., 887 F.2d 207, 213 (9th Cir.1989)). I believe that our reasoning and holding in the instant matter perpetuates the majority’s faulty reasoning in Ecology Center. Had the majority in Ecology Center not erroneously stretched the court’s reasoning and analysis in Lands Council I, we might have upheld the district court’s decision in this case because of our obligation to defer to the scientific expertise of the Forest Service and to overrule only determinations that are “arbitrary and capricious.” First, in examining the adequacy of the Forest Service’s scientific data concerning the effects of the Project on wildlife habitat, we would not be bound by the requirement that the Forest Service’s hypothesis and prediction must be “verified with observation” and “on the ground analysis.” Lands Council I, 395 F.3d at 1035. As Judge McKeown explained, the court in Lands Council I concluded that under the record and circumstances in that case the “Forest Service’s reliance on the spreadsheet models, unaccompanied by on-site spot verification of the model’s predictions, violated NFMA.” Ecology Ctr., 430 F.3d at 1073(quoting Lands Council I, 395 F.3d at 1035). There is no indication in the text of the Lands Council I opinion that the court sought to create an on-site analysis verification requirement for all soil quality anal-yses, and there is even less support for the proposition that the on-site verification requirement should be extended to “all scientific hypotheses adopted by the Forest Service regardless of context.” Id. at 1076. Thus, but for Ecology Centers on-site verification requirement, we would have at least been able to consider the Forest Service’s documentary support for its hypothesis that restoration treatment will benefit dependent species. As it stands, we summarily dismiss the Forest Service’s reliance on the R. Richard Howie and Ralph Ritcey study entitled Distribution, Habitat Selection, and Densities of Flammulated Owls in British Columbia simply because it is a survey of the flam-mulated owls’ habitat in British Columbia. Op. at 776-77. Although the Howie and Ritcey study admittedly does not conclude that logging improves flammulated owl habitat, it does document a flammulated owl presence within logged old-growth stands. We also would have been able to examine the Montana Partners in Flight, Montana Bird Conservation Plan, Idaho Partners in Flight, and Idaho Bird Conservation Plan. Again, even though none of these reports unequivocally state that logging will improve flammulated owl habitat, they do demonstrate that flammulated owls can inhabit selectively-logged stands. Ultimately, we might not have changed our conclusion that the “Forest Service has not proven the reliability of its scientific methodology with regard to wildlife habitat restoration in the Mission Brush Project,” but it should have been based on the content of the reports themselves — not the mere fact that they did not constitute “on the ground analysis.” Op. at 775-77. Even if one assumes, arguendo, that Ecology Center did not err in adopting the Lands Council I’s “verified with observation” and “on the ground analysis” requirement or in applying it to all of the Forest Service’s scientific hypotheses, Lands Council I certainly did not empower the majority in Ecology Center “to assess the detail and quality of,” Ecology Center, 430 F.3d at 1073, the Forest Service’s analysis and to “make fine-grained judgments of its worth,” Id. at 1078. Just as Judge McKeown believes that the majority should have held that the Forest Service’s soil analysis was in compliance with Lands Council I because it was on-site analysis and challenges the appropriateness of the majority’s criticism of the soil evaluators’ qualifications, I question whether, without Ecology Center, we would be able to scrutinize how many owl hoots were heard in the Dawson Ridge Study. Op. at 776-77. The Forest Service already considered this report and determined that there is sufficient support for its hypothesis that treating old-growth forest will maintain habitat and benefit dependent species. Judge McKeown captures my concern with her statement that “[i]n faulting the Forest Service’s soil quality and concluding that old-growth forest will not be impaired, the majority changes our posture of review to one where we sit at the table with Forest Service scientists and second-guess the minutiae of the decision making process.” Ecology Ctr., 430 F.3d at 1072. Similarly, by counting owl hoots, we are abandoning our role as reviewers under an “arbitrary and capricious” standard and supplanting the Forest Service as decision makers. If we do not grant the Forest Service appropriate deference in areas of scientific expertise, we defeat the purpose of permitting the Forest Service to make administrative decisions in the first place, and we intrude into areas far beyond our competence. Finally, not only is Ecology Center problematic from an administrative law perspective, but the injunction commanded in that case continues the pattern by some courts in this circuit of issuing injunctions based upon misconstructions of federal law that frustrate the careful legal balance struck by the democratic branches of our government between important environmental protections and carefully regulated logging within our national forests. It is not presently, and has never been, the policy of our national government under any administration to ban all logging in all of our national forests, and-yet, cases like Ecology Center make it virtually impossible for logging to occur under any conditions because the Forest Service can never satisfy the constantly moving legal targets created by our circuit, sometimes out of whole cloth. When federal law truly forbids logging in a particular area, we have appropriately held that “the public interest in preserving nature and avoiding irreparable environmental injury outweighs economic concerns,” Op. at 780 (citing Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1177 (9th Cir.2006); Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1308-09; Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 738 (9th Cir.2001); see also Sierra Nev. Forest Prot. Campaign v. Tippin, No. 06-00351, 2006 WL 2583036, at *21 (E.D.Cal. August 16, 2006)), but, as noted, I do not believe that the majority in Ecology Center correctly construed applicable federal law. When we misconstrue federal law and compound the effects of that misconstruction by affirming or requiring the issuance of a blunderbuss injunction banning all logging in a particular area instead of using a finely crafted legal scalpel based upon correct legal interpretations, we needlessly create great hardship in the lives of many people, harm the economic interests of our country, and foster disrespect for our courts. We must remember that an injunction is an equitable remedy that “must be narrowly tailored to give only the relief to which plaintiffs are entitled.” Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 558(9th Cir.1990) (emphasis added). An injunction should “remedy only the specific harms shown by the plaintiffs, rather than to enjoin all possible breaches of the law,” Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir.2004) (internal quotation marks omitted), and it “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs,” Califano v. Yamasaki 442 U.S. 682, 702, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979). Although I readily acknowledge that injunctions are sometimes required and appropriate in interdicting certain violations of federal law (and especially environmental law), in my view the pattern of some courts within our circuit to occasionally hand down over-broad injunctions based upon incorrect constructions of federal law has substantially contributed to (even though it is not entirely responsible for) the decimation of the logging industry in the Pacific Northwest in the last two decades and the commensurate growth of logging in our neighbor to the north. Scholars with far more time available than I have can trace the case-by-case results on a region-by-region basis, but the following governmental statistical data are illustrative of the damage suffered, at least part of which, in my opinion, is properly attributable to the effects of improperly granted or over-broad federal court injunctions. In Oregon, which has traditionally been one of the country’s leading producers of wood and paper products, timber harvests on federal lands decreased by more than 89% between 1988 and 1998. Krista M. Gebert, et al., U.S. Dept. of Agric., Utilization of Oregon’s Timber Harvest and Associated Direct Economic Effects, 1998 2 (2002). The number of primary lumber mills in Oregon went from 360 in 1988 to 200 in 1998, and overall log consumption was cut nearly in half. Id. Similar effects were felt throughout the Pacific Northwest. In the area covered by the Northwest Forest Plan, which encompasses northwest California as well as the western portions of Oregon and Washington, 30,000 direct lumber industry jobs were lost between 1990 and 2000. 1 Susan Charnley, et al., U.S. Dept. of Agric., Socioeconomic Monitoring Results 13 (2006). The communities closest to the forest lands have been hit the hardest. The Department of Agriculture reports that 40% of the communities within five miles of federal forests in this region suffered decreases in socioeconomic well-being during this period. Id. at 12. Although logging was a vital source of economic stability in these communities during the 1970s and 1980s, it “had become minor or negligible” in much of this area by 2003. Id. at 15. Furthermore, in my view there is a correlation between sometimes over-broad court injunctions halting the flow of lumber and the dramatic decrease of employment in logging communities throughout the Pacific Northwest. For example in Quilcene, Washington, the number of people working in the national forest dropped by 59% between 1993 and 2003. 3 Susan Charnley, et al., U.S. Dept. of Agric., Socioeconomic Monitoring Results 127, 131 (2006). Also, in the Mid-Klamath region in northern California, where logging went from providing 30% of the area’s jobs in 1990 to only 4% in 2000, the economic impact was devastating. Id. “Many mill workers, loggers, and F[orest] S[ervice] employees moved away in search of work elsewhere, taking their families with them. As a consequence, housing prices dropped, stores and service centers that supported these workers shut down, and school enrollment declined precipitously.... Not only did the community lose its economic base, but it also lost productive people who were hard-working and contributed much to the community.” Id. at 131. The effects of the severe decline in logging at least partially brought about by sweeping federal court injunctions incorrectly applying federal law are apparent on a national scale as well. From 1965 to 1988, lumber exports from the United States enjoyed steady growth. James L. Howard, U.S. Dept. of Agric., U.S. Timber Production, Trade, Consumption, and Price Statistics 1965 to 1999 4 (2001). After 1988, the Department of Agriculture reports that lumber exports suddenly spiraled downward at the same time that lumber imports reached unprecedented highs. Id. at 52. In 1988, before our circuit began to aggressively issue extremely broad injunctions against the logging industry, lumber exports peaked at 4.5 billion board feet and the United States imported 13.8 billion board feet. Id. By 1999, lumber exports had plummeted to just 2.5 billion board feet while imports soared to 19.9 billion board feet. Id. Judge Ferguson asserts a contrary view in his concurrence. He cites as authority for that view a 2003 tome by Messrs. Derrick Jensen and George Draffan entitled Strangely Like War: The Global Assault on Forests, which attributes the decline of logging in the Northwest almost entirely to corporate consolidation and cost-cutting within the timber industry. Every citizen has the constitutional right to express his or her views on any subject and have the value of what he or she says, and any works cited, evaluated by the hearer or reader, but, in my view, writers who say extreme things should not be surprised that many of the things they say will be heavily discounted because of that very extremism. According to Wikipedia, “Jensen is often labeled an ‘anarcho-primi-tivist,’ who is quoted as saying in his book A Language Older Than Words that ‘[e]very morning when I awake I ask myself whether I should write or blow up a dam. I tell myself I should keep writing, though I’m not sure that’s right.’ ” Wikipedia, http://en.wikipedia.org/wiki/Derrick_ Jensen. Mr. Draffan is described by Aric McBay in an interview published in In the Wake as a “forest activist, public interest investigator and corporate muckracker.” Aric McBay, An Interview with George Draffan, In the Wake, available at http:// www.inthewake.org/draffanl.html. He is a frequent contributor to Endgame.org and the compiler of Activist Research Manual published in January 1999 by the Public Information Network. I respectfully suggest that the views of persons who, for example, fantasize about blowing up dams (a form of eco-terrorism and criminal act that potentially threatens the lives and property of thousands of people) deserve a healthy skepticism because they are so skewed and are so far from the mainstream of knowledgeable discourse. As federal judges, we have a weighty responsibility to properly construe and apply federal environmental laws in order to protect our national parks and endangered species from undisciplined and unregulated timber harvesting, but we may not properly ignore the well-established standards that govern our own role in reviewing the laws and regulations enacted by the representative branches of our government and the agencies empowered to implement those laws. Because I respectfully contend that it was wrongly decided, I would (if the occasion arises) reverse the majority’s holding in Ecology Center, which would likely change the result in this case. However, because I am legally bound by Ecology Center, I reluctantly join my colleagues in reversing the lower court.

Lands Council v. McNair

FERGUSON, Circuit Judge, concurring, in which Judge REINHARDT also concurs. I write separately to respond to Judge Smith’s special concurrence. At the outset, I disagree with Judge Smith that Ecology Center was wrongly decided. I see little controversy in holding that an agency’s failure to confirm its hypotheses in a project area is arbitrary and capricious. I also note that the Supreme Court denied certiorari in that case. Mineral County v. Ecology Ctr., — U.S. —, 127 S.Ct. 931, 166 L.Ed.2d 702 (2007). More importantly, however, I take issue with the part of his special concurrence that, with no evidence whatsoever, assigns to the courts of our circuit culpability for the status of the timber industry and impugns the last several decades of our circuit’s environmental law jurisprudence. Judge Smith takes the plain fact that district courts in our circuit have enjoined logging projects in the past, adds the claim that the timber industry is declining, and asserts a causal relation between the two. In doing so, Judge Smith commits a textbook logical fallacy: post hoc, ergo propter hoc (after this, therefore because of this). See, e.g., Robert J. Gula, Nonsense: A Handbook of Logical Fallacies 95 (2002). The mere fact that there has been a “severe decline in logging” does not mean that it has been “brought about by sweeping federal court injunctions.” Judge Smith cites no evidence for this claim. Judge Smith’s two premises, first, that there has been something amiss in the issuance of injunctions, and, second, that the timber industry has declined as a result, are entirely erroneous. First, Judge Smith provides little evidence for his contention that district courts have issued injunctions that are “blunderbuss,” “over-broad,” “sweeping,” or “aggressive.” Judge Smith discusses no particular injunctions, aside from that in Ecology Center, yet he nevertheless asserts that we have “aggressively issue[d] extremely broad injunctions against the logging industry.” Judge Smith contends that there is a “pattern by some courts in this circuit of issuing injunctions based upon misconstructions of federal law that frustrate the careful legal balance struck by the democratic branches of our government.” Respect for “the democratic branches of our government,” however, requires that courts enjoin conduct that violates the environmental laws passed by Congress. A pattern of injunctions means that there has been a pattern of illegal conduct, not that there is something wrong with the courts’ handling of environmental cases. In Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1177-78 (9th Cir.2006), our colleague Judge William Fletcher “noticed a disturbing trend in the [Forest Service's] recent timber-harvesting and timber-sale activities” and suggested that the Forest Service has “been more interested in harvesting timber than in complying with our environmental laws.” See id. (citing numerous recent cases in which federal courts have reversed or enjoined Forest Service timber sales). District courts must not shy away from enjoining illegal activity by administrative agencies. The fact that we have upheld or required such injunctions in the past, and will continue to do so in the future, is required by, not contrary to, our role as an appellate court. The frequency of injunctions is evidence of the frequency of unlawful agency actions, nothing more and nothing less. Second, Judge Smith’s assertion that such injunctions are substantially responsible for “the decimation of the logging industry in the Pacific Northwest” is unsupported. As with many sectors of our economy, it is the practices of the timber industry itself that have caused massive unemployment, not the practices of those who would check its unhindered “progress.” Derrick Jensen and George Draf-fan rightly argue that debates about forest protection should never have been positioned as “jobs versus owls,” but rather “jobs versus automation, mergers, and downsizing.” Derrick Jensen & George Draffan, Strangely Like War: The Global Assault on Forests 51 (2003). They explain the impact of industry practices on employment as follows: As companies continue to merge in order to reduce industry overcapacity and boost market share, they shed jobs. In the 1970s and 1980s, the number of paper mills in the United States decreased by 21 percent, but the average output per mill increased by 90 percent. Paper production in that period increased by 42 percent, while employment in the industry decreased by 6 percent. The amount of timber cut increased 55 percent, while the number of logging and milling jobs decreased by 10 percent, or 24,000 jobs. In just one decade (1987— 1997), employment in pulp mills decreased by 2,900 jobs, and employment in paper mills decreased by 12,100 jobs. Output per employee in the U.S. paper industry has increased fourfold in the last fifty years. The wave of consolidation in the pulp and paper industry that began in the late 1990s is expected to cost another 50,000 jobs. Id. at 50-51(citing Miller Freeman, Inc., Pulp & Paper 1998 North American Fact-book 71, 72, 76 (1998), Maureen Smith, The U.S. Paper Industry and Sustainable Production 40, 43, 72 (1997), and Michael Jaffe, Industry Surveys: Paper & Forest Products 4 (1998)). We can see such impacts in this very case: much of the economic decline near Boundary County, Idaho was caused by the 2003 decision of Louisiana-Pacific, a leading manufacturer of building products, to close its mill in Bonners Ferry. That closure, which left 130 workers unemployed, resulted from the decision of the corporation, not an injunction from our courts. Contrary to Judge Smith’s suggestion, it appears that too much logging, rather than not enough, has caused the economic decline in Boundary County. A spokesperson for Riley Creek Lumber Company, the company that bought the mill site from Louisiana-Pacific, explained why the mill would not reopen: “There’s not enough raw material to support a mill operation at Bonners Ferry.” A Louisiana-Pacific spokesperson also explained the closure, stating, “In the lumber business, we continue to see an oversupply situation, with historic low prices.” By depleting the “raw materials” and depressing the price of lumber through oversupply, the industry has put people out of work. I have the utmost sympathy for those left unemployed by these recent trends, but I cannot accept Judge Smith’s assertion that the judiciary, rather than the industry, is primarily to blame. . Judge Smith's ad hominem attack against Jensen and Draffan does not address the merits upon which the authors base their contentions. Regardless of how one feels about these two individuals, their argument quoted herein is a quantitative analysis, citing other studies. It has nothing to do with blowing up dams. Furthermore, I do not think politically engaged individuals are disqualified from contributing to the analysis of an issue. It is certainly not our role to determine who we think is or is not in the political "mainstream” and to credit their research accordingly. . Dan Hansen, Bonners Ferry Mill Won’t Reopen, Spokesman Rev. (Spokane, WA), July 23, 2003, at A8. . Becky Kramer, Timber Town May Buy Two L-P Sawmills, Spokesman Rev. (Spokane, WA), May 30, 2003, at A1 (emphasis added). . Notably, while low-income workers have been laid-off, the world's largest paper companies have provided multi-million dollar pay packages to their CEOs. Louisiana-Pacific’s CEO received a ten-percent salary increase and a package worth $3.6 million in 2006. Louisiana-Pacific, Notice of Annual Meeting of Stockholders 21, 25 (2007), available at http ://libraty. corporate-ir.net/library/73/730/ 73030/items/ 237173/2006proxy.pdf. International Paper’s CEO received a package worth $13.7 million in 2006. International Paper, Notice of Annual Meeting of Shareholders 50 (2007), available at http://www.internation alpaper.com/PDF/PDFs_for_Our_Company/ 2007_ Proxy_Statement.pdf. Weyerhaeuser’s CEO received a package worth $4 million in 2006. Weyerhaeuser, Notice of 2007 Annual Meeting of Shareholders and Proxy Statement 27 (2007), available at http://library. corporate-ir.net/library/92/922/92287/items/ 235323/WY2007ProxyStatement.pdf. Georgia-Pacific's former CEO received a $92 million package when the multi-billion dollar Koch Industries acquired Georgia-Pacific in 2005 to become the largest privately owned company in the United States. Emily Thornton, Fat Merger Payouts For CEOs, Bus. Wk., Dec. 12, 2005, at 34; Koch Industries Inc.: Acquisition of Georgia-Pacific For $13.2 Billion Is Completed, Wall St. J., Dec. 24, 2005, at B2.

Florida Power & Light Co. v. Costle

TJOFLAT, Circuit Judge: Florida Power & Light Company has petitioned for review, pursuant to section 307(b)(1) of the Clean Air Act, 42 U.S.C. § 7607(bXl) (Supp.1979), of a rulemaking action by the Administrator of the Environmental Protection Agency (EPA) taken under section 110 of the Clean Air Act, 42 U.S.C. § 7410 (Supp.1979). I The Clean Air Act, 42 U.S.C. § 7401 et seq. (Supp.1979) (the Act), is an attempt to achieve and maintain national air quality standards for the protection of the public health and welfare. Under the Act, the EPA is required to identify dangerous air pollutants, 42 U.S.C. § 7408 (Supp.1979), and to promulgate national ambient air quality standards specifying acceptable concentrations of these harmful pollutants, 42 U.S.C. § 7409 (Supp.1979). This petition involves two pollutants identified and regulated by the EPA: particulates and sulfur dioxide. Congress chose a balanced scheme of state-federal interaction to implement the goals of the Act. Section 110(a)(1), 42 U.S.C. § 7410(a)(1) (Supp.1979), requires each state to adopt and submit to the Administrator of EPA a state implementation plan (SIP) specifying the methods the state will employ to attain the air quality standards promulgated by EPA. Each SIP must also identify the measures the state will impose to prevent significant deterioration of air quality in those that are in compliance with the national ambient air quality standards. 42 U.S.C. § 7471 (Supp. 1979). See also Sierra Club v. Ruckelshaus, 344 F.Supp. 253 (D.D.C.1972), aff’d sub nom. Fri v. Sierra Club, 412 U.S. 541, 93 S.Ct. 2770, 37 L.Ed.2d 140 (1973). The EPA is required to review each SIP to determine whether it meets the criteria for achievement and maintenance (prevention of deterioration) of national air quality standards. 42 U.S.C. § 7410(a)(2) (Supp. 1979). Under certain circumstances a state must submit a proposed revision of an SIP to the EPA. Relevant here is the requirement that a state submit a proposed SIP revision when a pollution source within the state intends to increase its emissions beyond the limits imposed by the EPA-approved SIP. EPA must use the same criteria it uses for evaluating an initial SIP to judge the adequacy of a revised SIP. 42 U.S.C. § 7410(a)(3) (Supp.1979). Absent a state implementation plan, or given a deficient state scheme, the EPA Administrator is authorized to promulgate an adequate SIP. 42 U.S.C. § 7410(c) (Supp.1979). If an SIP or a revised SIP meets the statutory criteria, however, the EPA must approve it. Train v. National Resources Defense Council, Inc., 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975). The state is “at liberty” to devise the particular components of its pollution control plan so long as the plan is adequate to meet the standards mandated by EPA. Id. at 79-80, 95 S.Ct. at 1482. See also Union Electric Co. v. Environmental Protection Agency, 427 U.S. 246, 250, 96 S.Ct. 2518, 2522, 49 L.Ed.2d 474 (1976). The Act, therefore, establishes a program for air quality improvement that reflects the balance of state and federal rights and responsibilities characteristic of our federal system of government. To implement the Act’s goal of preventing significant deterioration of air quality in those geographic areas meeting national air quality standards, Congress categorized these areas into three classes, and established maximum increments of air pollution allowable in each class. See 42 U.S.C. §§ 7470-7479 (Supp.1979). Pursuant to this Congressional mandate, EPA promulgated regulations specifying that these increments were to be measured from a certain date, known as the baseline date, thus providing the perspective necessary to evaluate maintenance of air quality. These regulations established a national baseline date of August 7, 1977. See 43 Fed.Reg. 26400 (1978). The petition we must now review deals in part with the prevention of significant deterioration in one of the areas Congress afforded maximum protection, the mandatory Class I region of the Everglades National Park. II Petitioner, an electric utility company incorporated and operating in the State of Florida, seeks review of EPA’s action on a proposed SIP revision submitted by the State of Florida. To comply with Florida’s EPA-approved SIP, petitioner burned low sulfur fuel oil at its oil-fired generating plants. Early in 1979, Exxon Company, U.S.A., petitioner’s source of oil, informed the petitioner of a significant decrease in the availability of low sulfur fuel. Petitioner could not burn available higher sulfur fuel without exceeding the pollution limits imposed by Florida’s SIP. In February of 1979, therefore, petitioner and other similarly situated Florida utilities petitioned Florida Governor Bob Graham for emergency relief under section 110(f) of the Act, 42 U.S.C. § 7410(f) (Supp.1979). Section 110(f) provides that, upon application by the owner or operator of a fuel-burning pollution source, the governor of a state in which the source is located may petition the President of the United States for a determination that a regional energy emergency exists and is of such severity that a temporary suspension of those parts of the SIP implicated by the energy emergency is necessary. Upon such a determination, the Governor is empowered to issue a temporary suspension of the relevant SIP provisions. This special relief is statutorily limited to a 120-day period for each effected pollution source. Id. Governor Graham petitioned the President on behalf of Florida Power & Light and other Florida utilities. President Carter responded with a Presidential Determination that a regional energy emergency existed in Florida. 44 Fed.Reg. 21245 (1979). Soon thereafter, Governor Graham suspended portions of Florida’s SIP. Although this initial period of relief was extended through subsequent Presidential Determinations, see, e. g., 44 Fed.Reg. 61157 (1979), the statutorily mandated 120-day relief period limited its effect on each source of pollution. Because Florida Power & Light perceived this limited relief to be inadequate in light of the anticipated duration of the low sulfur fuel shortage, it submitted to the Secretary of the Florida Department of Environmental Regulation a request for a state variance, and for an amendment to the Florida SIP providing for longer term exemption from the low sulfur fuel requirement. As discussed above, the Clean Air Act allocates primary responsibility for the terms of air quality attainment and maintenance to the states. Therefore, it was essential for petitioner to seek relief from Florida. If the state determined that the requested relief was appropriate, it would then seek EPA approval of its determination through submittal of a revised SIP. In accordance with this structure, Florida Power & Light appealed to Florida for a twenty-four month period of relief under section 403.20(l)(a)-(c) of the Florida statutes. Those subsections are part of Florida’s statutory scheme of environmental protection; they read 403.201 Variances. (1) Upon application the department in its discretion may grant a variance from the provisions of this act or the rules and regulations adopted pursuant hereto. Variances and renewals thereof may be granted for any one of the following reasons: (a) There is no practicable means known or available for the adequate control of the pollution involved. (b) Compliance with the particular requirement or requirements from which a variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time. A variance granted for this reason shall prescribe a timetable for the taking of the measures required. (c) To relieve or prevent hardship of a kind other than those provided for in paragraphs (a) and (b) above. Variances and renewals thereof granted under authority of this paragraph shall each be limited to a period of twenty-four months. Fla.Stat.Ann. § 403.201 (West). After compliance with all procedural prerequisites, Florida’s Department of Environmental Regulation responded to Florida Power & Light’s request with an order dated August 28, 1979 (Order I). This order granted relief under section 403.201(l)(b) & (c) of the Florida statutes. It provided for relaxation of relevant SIP emission limitations and allowed for certain future increments of pollution, to be generated by petitioner’s Turkey Point and Port Everglades plants, in the Class I region of the Everglades National Park. The order specified that the relief granted under section 403.-201(l)(e) would last for a period of two years, the maximum period allowed by that section. While it is clear that Florida Power & Light initially applied for relief spanning only a twenty-four month period, Order I did not explicitly limit the relief granted under section 403.201(l)(b) to a period of two years. Rather, Order I stated that the Department of Environmental Regulation would retain jurisdiction over petitioner’s application and, after further hearings, would determine several remaining issues, including that of “[t]he appropriate period of time for which this variance, and the relief granted thereby, shall be granted.. .. ” Record, vol. 1 at 115. Florida submitted Order I to EPA as a proposed SIP revision on August 31, 1979. Along with its substantive provisions, the proposal included proper documentation of compliance with required procedural safeguards regarding public notice and comment. Thereafter, on September 18, 1979, and October 2, 1979, the Florida Department of Environmental Regulation held hearings to address the issues it retained for further consideration. On October 18, 1979, the Department issued a supplemental order (Order II). Order II included a determination that: “[t]he term of the relief granted by this variance shall be two years, beginning with the date of this order; provided, however, that the Secretary of the Department may alter the relief provided herein.... ” Record, vol. II at 431. Thus, as far as the state was concerned, it had granted Florida Power & Light relief for two years. At this time, however, Order II was not transmitted to EPA. While EPA was cognizant of Order II, EPA treated Order I as Florida’s proposed SIP revision. As such, it was only Order I that was examined for compliance with section 110 of the Act. See 44 Fed.Reg. 69683 (1979). On December 4, 1979, EPA published notice of its proposed action on Florida’s SIP revision. EPA approved all but two parts of the proposed revision. First, Florida had failed to specify a testing method to measure compliance with the terms of the revised SIP. While most of the emission limitations were permissible under the Act, EPA could not approve them without a specified testing method. In providing for correction of this deficiency, EPA acknowledged its awareness of Order II: “No testing method for compliance is specified. The State, in a recent supplement [Order II] to the variance, has ordered FP&L to test for particulates using EPA test method 5 or 17. This information, along with the testing method for sulfur dioxide, should be submitted to EPA as part of the SIP revision package." 44 Fed.Reg. 69684 (1979) (emphasis’ added). Second, EPA found Florida’s relaxation of emission limitations on petitioner’s Turkey Point and Port Everglades plants inappropriate because the proposed emissions would violate the sulfur dioxide increments established for the Class I region of Everglades National Park. Id. These preventions of significant deterioration increments were measured from the national baseline date of August 7, 1977. See supra, at 581. In response to EPA’s notice of proposed action, Stephen Smallwood, Chief of the Bureau of Air Quality Management, Florida Department of Environmental Regulation, sent EPA Order II under cover of a letter dated February .11, 1980 that, after stating where in Order II the required testing methods were described, requested “[p]lease attach this October 18 Order [Order II] to and make it a part of the August 31, 1979 SIP submission which presented the August 28,1979 Variance Order [Order I] as a Plan revision.” Record, vol. II at 420. (Emphasis added.) There is no indication in the record that Florida complied with the EPA’s public hearing certification requirement with respect to Order II. See 40 C.F.R. § 51.4(d) (1980). Florida Power & Light responded to EPA’s proposed action by contending that the then recent decision of Alabama Power et al. v. Costle, 636 F.2d 323 (D.C.Cir.1980), justified further EPA consideration of the Turkey Point and Port Everglades emissions issue. Alabama Power held invalid certain EPA regulations relating to the prevention of significant deterioration of air quality. Among the invalidated regulations was the provision establishing a nationally uniform baseline date to measure increments of pollution in areas conforming to air quality standards. Petitioner argued that this judicial action, coupled with the court’s guidance on what constituted a proper baseline, mandated reconsideration of Florida’s proposed emission limitations, which had been rejected for failing to comply with allowable increments measured from the nationally uniform baseline date. Petitioner commented that, given the necessity for agency rectification of baseline criteria, Florida’s emission proposals were potentially valid. In its notice of final action, EPA rejected petitioner’s argument because neither Alabama Power nor “present EPA regulations” provided for the type of baseline criteria, suggested by petitioner. Accordingly, the Administrator disapproved Florida’s Turkey Point and Port Everglades emission proposals. 45 Fed.Reg. 13456 (1980). EPA’s notice of final action did something in addition to approving Florida’s SIP revision in part and disapproving it in part. Having made Order II part of Florida’s SIP proposal, EPA incorporated Order II’s two-year limit on relief into its final ruling: “[ajlthough not identified in the Federal Register proposal notice of December 4, 1979, this variance is a temporary SIP revision which will be in effect for two years from the date of the FP&L variance partition [sic], July 25, 1981.” Id. at 13455. Soon after publication of EPA’s notice of final action, counsel for Florida Power & Light wrote to EPA requesting a technical amendment, based on the absence of any time limitation in Order I, eliminating the two-year limitation on relief. The record does not reveal an EPA response to this request. On April 29, 1980, Florida Power & Light filed a petition for review in this court challenging EPA’s notice of final action. Petitioner asserts that EPA has acted inappropriately by incorporating Order II’s two-year limitation on relief into its final rule, and in disapproving the relaxation of emission limitations on petitioner’s Turkey Point and Port Everglades plants. The Florida Department of Environmental Regulation has filed an amicus curiae brief in this case, joining petitioner’s contention concerning the inappropriateness of EPA’s incorporation of Order II’s two-year limitation on relief. Ill A A threshold matter we wish to address is the question of whether Order II was properly before the EPA. Proposed SIP revisions may be submitted to the EPA only after the public hearing requirements of 40 C.F.R. § 51.4 (1980) have been met. See 40 C.F.R. § 51.6(f) (1980). Section 51.4(d) of the regulations provides that EPA be notified, through state certification accompanying the proposed SIP revisions, of state compliance with the hearing requirements. 40 C.F.R. § 51.4(d) (1980). Although Order II recited that it emerged from a process of deliberation that included public hearings, record, vol. II at 421, the state did not include a certification of public hearing when Order II was submitted to the EPA. Compare record, vol. II at 420 (Order IPs submittal letter) with record, vol. I at 35-36 (Order I’s submittal letter). We hold, however, that this minor procedural default should not preclude EPA consideration of the state submission. It is clear that a presumption of regularity attaches to administrative action, Chaney v. United States, 406 F.2d 809, 813 (5th Cir.), cert. denied, 396 U.S. 867, 90 S.Ct. 128, 24 L.Ed.2d 120 (1969), and that the courts are to accord deference to an agency’s interpretation of its own regulations. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); Shell Oil Co. v. Federal Power Commission, 491 F.2d 82, 88 (5th Cir. 1974). The issue, therefore, is whether deference is due to EPA’s consideration of Order II despite the absence of a state public hearing certification. The deference extended to agency implementation of regulations is bottomed on judicial respect for agency expertise. “The primary rational behind the doctrine of deference is recognition of administrative expertise developed through implementation and enforcement of statutes and regulations.” Standard Oil Co. v. Department of Energy, 596 F.2d 1029, 1055 (Em.App.) (1978). See also Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 100 S.Ct. 790, 797, 63 L.Ed.2d 22 (1980). We must review EPA’s action with this fundamental consideration, in mind. In this case, EPA had received a properly certified SIP revision proposal (Order I). By finding the SIP approvable, with enumerated exceptions, EPA certainly took cognizance of state compliance with the public hearing requirements. Indeed, in reviewing that proposal, EPA had to determine that it had been adopted on the state level after compliance with all procedural prerequisites. See Appalachian Power Co. v. Environmental Protection Agency, 579 F.2d 846, 850 (4th Cir. 1978). EPA found it necessary, however, to request supplementation of this SIP revision proposal. This supplementation was to take the form of confirmation that the state was planning to employ certain EPA-approved testing methods in implementing its SIP. 44 Fed.Reg. 69684 (1979). It is essential to review the procedural adequacy of EPA’s acceptance of Order II in light of what was requested. As far as the EPA was concerned, Order I comprised all of Florida’s SIP revision proposal — the supplementary testing method information was seemingly a purely formal, even peripheral matter. The testing methods in question are standard EPA methods used with regularity in monitoring compliance with SIP provisions. It is here that deference to agency expertise is particularly appropriate. The testing methods did not go to the substance of the SIP revision proposal, and EPA’s great expertise in Clean Air Act enforcement apparently indicated that state adoption of already promulgated EPA testing methods did not require rigorous procedural safeguards. See Donner Hanna Coke Corp. v. Costle, 464 F.Supp. 1295, 1304 (W.D.N.Y.1979). These factors, in conjunction with the absence in the record of evidence of prejudice to any party derived from EPA’s acceptance of Order II, National Labor Relations Board v. Selwyn Shoe Mfg. Corp., 428 F.2d 217, 224 (8th Cir. 1970), makes it appropriate for us to defer to EPA’s decision to review Order II despite the minor procedural omission. This result is supported by Mision Industrial, Inc. v. Environmental Protection Agency, 547 F.2d 123 (1st Cir. 1976). In that case, an SIP revision proposal, as originally subjected to public hearing, did not provide adequate assurances of state commitment of sufficient personnel and resources to implement the SIP, as required under the Clean Air Act regulations. See 40 C.F.R. § 51 at App. K (1980). “Assurances along these lines came later, under prodding of the Administrator.” Mision Industrial, 547 F.2d at 130. Those later assurances were not presented for public comment on the state level. Nevertheless, the First Circuit held that EPA acted within its discretion in reviewing their adequacy: “Petitioners point out that the Commonwealth’s proposed allocation of resources was not stated as part of the proposed revision itself at the time of the public hearing. Without endorsing the omission, we do not see it as fatal to the hearing or to the Administrator’s later acceptance of the revision. Nothing in the record indicates that revision proponents used the omission to enhance their position.” Id., 547 F.2d at 130 n.5. We are convinced that the reasoning in Misión should control this case as well, and thus find that Order II was properly before the EPA. B Having concluded that the EPA acted properly in reviewing Order II, we must turn to the issue of whether it was appropriate for the EPA to incorporate Order II’s state-imposed two-year limitation on relief into the SIP proposal submitted for EPA approval. The court and all parties to this dispute agree that EPA’s incorporation of the state-imposed two-year limitation on relief must be upheld if EPA did not abuse its discretion by injecting it into the SIP revision proposal. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Texas v. Environmental Protection Agency, 499 F.2d 289, 296 (5th Cir. 1974), cert. denied, 427 U.S. 905, 96 S.Ct. 3191, 49 L.Ed. 1199 (1976). To focus more clearly on the issue presented, we will restate the relevant facts. When EPA first reviewed Florida’s SIP revision proposal, it identified the inadequacies in the plan warranting correction. 44 Fed.Reg. 69683-84 (1979). After enumerating these problems, the agency stated: “EPA is today proposing to approve the -Florida revision except for the portions affected by the deficiencies just described; it is proposed to disapprove the latter portions.” Id. at 69684. This statement of proposed EPA action did not refer in any manner to the duration of relief granted to Florida Power & Light under Florida’s proposal. In fact, Order I lacked a temporal limitation on relief granted under Florida section 403.201(1)(b). Nonetheless, absent a time provision, and with the exception of the enumerated deficiencies, EPA found Florida’s SIP revision proposal in full compliance with all relevant Clean Air Act standards. In light of later EPA action, this finding of compliance with section 110(a)(2) of the Act cannot be emphasized too much. As discussed above, supra at 583, EPA had identified two problems with Florida’s submittal: the failure to identify testing methods, and the allegedly inappropriate relaxation of standards for future emissions at the Turkey Point and Port Everglades plants. By the time EPA issued its final ruling on the Florida proposal, the information in Order II had cured the test method deficiency. The Everglades emission problem still remained, however. Accordingly, EPA approved the Florida plan except for the proposed emissions limitations in the Everglades area. 45 Fed.Reg. 13455-13456 (1980). EPA’s final rule also incorporated Order II’s state-imposed two-year limitation on relief: “Although not identified in the Federal Register proposal notice of December 4,1979, this variance is a temporary SIP revision which will be in effect for two years from the date of the FP&L variance partition [sic], July 25, 1981.” Id. at 13455. All parties agree that, whatever the legality of EPA’s action, the designation of July 25, 1981, as the end-point of the variance is clearly incorrect. See Supplemental Brief of Respondent, EPA, at 3 n.2. At oral argument, counsel for EPA opined that the date could have been the result of a typographical error. Recently, EPA has acknowledged its error in the Federal Register. 45 Fed.Reg. 68405 (1980). The least this court must do, therefore, is vacate EPA’s imposition of the July 25, 1981 deadline on the relief afforded FP&L, as imposition of a deadline without any support in the record is surely arbitrary and capricious. See Texas, 499 F.2d at 296. EPA insists, however, that the relief afforded FP&L still must be limited to two years; the agency asserts that the problem before the court will be solved if the deadline of October 18, 1981 (two years from the true date of the state variance), is substituted for that of July 25, 1981 in the EPA-approved Florida SIP revision proposal. 45 Fed.Reg. 68405 (1980). We must, therefore, address the merits of EPA’s inclusion of the state-imposed two-year provision. Our inquiry is controlled by Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975). That case identifies and delineates the respective roles of the states and EPA under the Clean Air Act. There is little room for doubt about the implications of Train; the message is clear that when the EPA reviews an SIP proposal, “[t]he [Clean Air] Act gives the Agency no authority to question the wisdom of a State’s choices of emission limitations if they are part of a plan which satisfies the standards of § 110(a)(2). ... Thus, so long as the ultimate effect of a State’s choice of emission limitations is compliance with the national standards for ambient air, the State is at liberty to adopt whatever mix of emission limitations it deems best suited to its particular situation. Id., at 79, 95 S.Ct. at 1482 (emphasis added). EPA faces the same horizon when reviewing an SIP revision proposal: [The Clean Air Act] requires the Agency to “approve any revision of an implementation plan” if it “determines that it meets the requirements” of § 110(a)(2). On its face, this provision applies to any revision, without regard either to its breadth of applicability, or to whether it is to be effective before or after the attainment date; rather, Agency approval is subject only to the condition that the revised plan satisfy the general requirements applicable to original implementation plans. Far from evincing congressional intent that the Agency assume control of a State’s emission limitations mix once its initial plan is approved, the revision section is to all appearances the mechanism by which the States may obtain approval of their developing policy choices as to the most practicable and desirable methods of restricting total emissions to a level which is consistent with the national ambient air standards. Id. at 80, 95 S.Ct. at 1482. See also Union Electric Co. v. Environmental Protection Agency, 427 U.S. 246, 250, 96 S.Ct. 2518, 2522, 49 L.Ed.2d 474 (1976); Ohio Environmental Council v. Environmental Protection Agency, 593 F.2d 24, 31 (6th Cir. 1979); Appalachian Power Co. v. Environmental Protection Agency, 579 F.2d 846, 851 n.7 (4th Cir. 1978); Northern Ohio Lung Association v. Environmental Protection Agency, 572 F.2d 1143, 1147 & 1149 (6th Cir. 1978). Under the Act, therefore, states may provide for “ameliorative revisions” of an established pollution control scheme as long as national clean air standards are not compromised. Train, at 98, 95 S.Ct. at 1491. Furthermore, states may be stricter with polluters than the Clean Air Act requires. Appalachian Power, 579 F.2d at 851. The conclusion is inevitable that “[t]he [Clean Air] Act recognizes that, as long as an SIP continues to satisfy the requirements of Section 110(a)(2) of the Act, 42 U.S.C. § 7410(a)(2), a state may revise any aspect of its plan, including the date of attainment.” Northern Ohio Lung Ass'n, 572 F.2d at 1149. The great flexibility accorded the states under the Clean Air Act is further illustrated by the sharply contrasting, narrow role to be played by EPA. Quite simply, “the Act provides that the Administrator ‘shall approve’ the proposed plan if it has been adopted after public notice and hearing and if it meets [the] specified criteria. § 110(a)(2).” Union Electric Co., 427 U.S. at 250, 96 S.Ct. at 2522 (emphasis added). “[I]n evaluating a proposed SIP, the Administrator is confined to the .. . criteria set forth in Section 110(a)(2) of the Act, 42 U.S.C. § 7410(a)(2), and may not concern himself with factors other than those specifically enumerated therein.” Northern Ohio Lung Ass'n, 572 F.2d at 1147 (emphasis added, footnote omitted). The issue presented here, therefore, is whether, given the strictly circumscribed role of the EPA, the agency abused its discretion in attempting to require Florida to include the two-year limitation on relief contained in Order II in the EPA-approved SIP revision proposal. We believe the agency did abuse its discretion in so acting, and accordingly we disapprove EPA’s attempt to force Florida to convert its state limitation on relief into a federally enforceable SIP provision. By its own ruling, the provision EPA insists upon incorporating into Florida’s SIP revision does not affect Florida’s substantive compliance with the Clean Air Act. See 44 Fed.Reg. 69684 (1979). See also supra, at 586. Thus, EPA is surely overstepping the bounds of its discretion; EPA can point to no provision of section 110(a)(2) of the Act that requires it to incorporate the Florida limitation and, as Train and Union Electric make clear, that is EPA’s only proper inquiry. EPA does not meet this contention, but rather argues that it was required to incorporate the two-year limitation into the SIP revision proposal because otherwise, under Florida law, the SIP would not be enforceable. Since the regulations prohibit the agency from approving SIPs that are not enforceable under state law, see 40 C.F.R. § 51.11 (1980), EPA had no choice, it asserts, other than to impose Florida’s own state requirements through incorporating them into the federally-enforceable SIP. To support this position, EPA simply refers us to the word “timetable” in section 403.-201(l)(b) of the Florida Statutes, see supra, at 582, which, EPA asserts, requires firm temporal guidelines in regard to relief from state pollution control requirements. Absent such guidelines, it asserts, the statute is unenforceable under state law. This position is not well taken. As we read section 403.201(1)(b), its requirement that a timetable accompany a variance granted under that section does not mean that a final compliance deadline must be established for the state variance, and thus the SIP, to be enforceable under state law. The variance granted Florida Power & Light by Florida’s Department of Environmental Regulation, the state agency charged with implementing the statute, recognized specifically that section 403.201(1)(b) allowed for flexibility; Order II recited that relief under section 403.201(1)(b) was granted for two years, “provided, however, that the Secretary of the Department may alter the relief provided herein .... ” Record, vol. II at 431. The language of the statute itself gives no indication that variances granted under it become a nullity absent a final compliance deadline, and EPA has pointed the court to nothing in Florida law that supports EPA’s strained interpretation of the statute. Moreover, it must be emphasized that EPA is to be accorded no discretion in interpreting state law. Quite the contrary is true: “[the United States] should defer to the state’s interpretation of the terms of its air pollution control plan when said interpretation is consistent with the Clean Air Act.” United States v. Interlake, Inc., 432 F.Supp. 985, 987 (N.D.Ill.1977). See also Ohio Environmental Council, 593 F.2d at 29 (EPA reliance on state interpretation of state law is consistent with the agency’s secondary role under the Clean Air Act). Furthermore, EPA’s contention has no support in the record before us. Florida has steadfastly maintained that EPA has misinterpreted the requirements of Florida law. See Brief of Amicus Curiae, State of Florida Dept, of Environmental Regulation. When EPA ruled that it would incorporate the two-year limitation into the SIP revision proposal, the State of Florida objected. The State argued that' EPA was incorrect in its interpretation of Florida law, and stressed that the state never intended to include the two-year provision in the federally enforceable scheme. Accordingly, to cure the dilemma, Florida requested EPA to consider the limitation, which the State never conceded it had actually submitted, withdrawn. Letter from Florida Dept, of Environmental Regulation to Regional Administrator of EPA, Supplemental Brief of Petitioner, Addendum A. See also Brief of Respondent, EPA, at 21 n.13; Brief of Amicus Curiae, State of Florida Dept, of Environmental Regulation at 8. Rather than reassessing its position, EPA chose not to defer to Florida’s interpretation of its own state law. Indeed, it decided to treat the State’s response “as a new SIP revision,” 45 Fed.Reg. 68405 (1980), and then went on to disapprove it because, among other things, Florida, in writing to correct the EPA, had failed to meet the Clean Air Act’s public hearing requirements. Id. EPA insists, therefore, on incorporating into Florida’s SIP a state pollution variance provision that is irrelevant to state compliance with the Clean Air Act. It does so, moreover, on the basis, of a strained interpretation of state law that the State itself has taken great pains to demonstrate as wholly incorrect. EPA has thus entangled itself in a matter beyond its proper concern, see Train and Union Electric, and has done so in the face of well-founded state objections. See Texas v. Environmental Protection Agency, 499 F.2d at 310. This is clearly an abuse of discretion; it is agency action beyond the Congressional mandate. It serves, furthermore, to usurp state initiative in the environmental realm, and thus to disrupt the balance of state and federal responsibilities that undergird the efficacy of the Clean Air Act. We must, therefore, disallow the EPA’s attempted incorporation of Florida’s two-year variance limitation into the federally enforceable SIP revision. C The final issue to be resolved concerns EPA’s disapproval of Florida’s proposed relaxation of emission limitations at petitioner’s Turkey Point and Port Everglades generating plants. It is uncontested that EPA used the 1978 prevention-of-significant-deterioration regulations and the national baseline date of August 7, 1977 to evaluate the emissions limitations Florida proposed for the Turkey Point and Port Everglades plants. It is also uncontested that Florida’s proposal, if implemented, would yield emissions in excess of levels permissible under the 1978 regulations. What would otherwise be a straight-forward ruling, however, has been complicated by the case of Alabama Power Co. v. Costle, 606 F.2d 1068 (D.C.Cir.1979) (per curiam), superseded, 636 F.2d 323 (D.C.Cir.1980). In Alabama Power, the United States Court of Appeals for the District of Columbia Circuit invalidated the baseline provisions of the 1978 prevention-of-significant-deterioration regulations. For various reasons, however, the court, on unopposed motion of the parties, stayed the mandate; and thus postponed the effective date of the judgment. See Fed.R.App.P. 41(a). The Court stayed the mandate in Alabama Power from January, 1980, until July, 1980. It was during this interim period, on February 29,1980, that EPA acted on the basis of the 1978 regulations to disallow Florida’s Turkey Point and Port Everglades plant emission limitation proposals. Florida Power & Light, a party to the Alabama Power litigation, submitted comments on EPA’s proposed ruling on the Turkey Point and Port Everglades issue, arguing that the result in Alabama Power should cause EPA to wait before issuing a final ruling based on the invalidated regulations. At the same time, Florida Power & Light suggested a new test the utility believed appropriate under Alabama Power for measuring air quality deterioration. EPA rejected this commentary, basing its decision on the absence of “present EPA regulations or guidance” that would provide support for such EPA action. 45 Fed.Reg. 13456 (1980). This disagreement, coupled with adverse contentions about whether the Unopposed Joint Petition for Further Stay of the Issuance of Mandate in Alabama Power, see Supplemental Brief of Petitioner, Addendum F, to which both Petitioner and EPA were parties, should be interpreted to preclude EPA action founded upon the discredited baseline criteria, initially triggered this litigation. We need not rule here, however, on the basis of the efficacy of the Alabama Power judgment vis-a-vis these parties. The court will take notice, U. S. Steel Corp. v. Environmental Protection Agency, 595 F.2d 207, 212 n.11 (5th Cir.), modified in part, 598 F.2d 915 (5th Cir. 1979), of EPA’s publication in the Federal Register, 45 Fed.Reg. 52676 et seq. (1980), of regulations replacing those invalidated in Alabama Power. These regulations are presently the law. Assuming for the sake of argument that EPA’s position on the validity of the 1978 regulations at the time of its final ruling on the Turkey Point and Port Everglades matter is correct, EPA nonetheless is requesting this court to uphold administrative action founded upon presently invalid regulations. We can perceive no utility and even less virtue in doing this. In United States v. Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49, 51 (1801), Chief Justice Marshall wrote: [I]f subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, ... I know of no court which can contest its obligation. It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns . .. the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.” The Supreme Court reaffirmed the authority of this declaration in Thorpe v. Housing Authority of Durham, 393 U.S. 268, 282, 89 S.Ct. 518, 526, 21 L.Ed.2d 474 (1969), stressing that the rule “[sjurely . . . applies with equal force where the change is made by an administrative agency acting pursuant to legislative authorization.” Id. “In hearing a petition for review, a court of appeals may exercise equitable powers in its choice of a remedy, as long as the court remains within the bounds of statute and does not intrude into the administrative province.” Sharon Steel Corp. v. Environmental Protection Agency, 597 F.2d 377, 381 (3d Cir. 1979). In equity, we cannot ignore the application of this rule to the case before us. The proper course is to remand the Turkey Point and Port Everglades emissions relaxation issue to EPA for reconsideration in light of the presently controlling prevention of significant deterioration regulations. See Concerned Citizens of Vicksburg v. Sills, 567 F.2d 646, 649-50 (5th Cir. 1978). We accordingly do so. VACATED IN PART AND REMANDED IN PART. . EPA asserts that Florida Power & Light has waived its right to contest the inclusion of the two-year limitation because the utility failed to raise an objection to its incorporation during the public comment period between publication of EPA’s proposed ruling and EPA’s final action. Brief of Respondent, EPA, at 23-24. This argument must fail because EPA failed, in its proposed ruling, to make any reference to its desire to incorporate the temporal limitations of Order II into the proposed SIP revision. Florida Power & Light had no reason to comment on the matter until EPA’s intention became clear; at that time, Florida Power & Light acted immediately to correct EPA. See Florida Power & Light’s Request for Technical Amendment, record, vol. II at 536. Thus, the utility’s argument is properly before this court.

Kennedy Building Associates v. Viacom, Inc.

JOHN R. GIBSON, Circuit Judge. Viacom, Inc., the corporate successor to Westinghouse Electric Corporation, appeals the judgment entered against it for damages and injunctive relief and the awards of attorneys’ fees and prejudgment interest in this suit arising out of Westinghouse’s environmental contamination of a site it once owned in Minneapolis. Kennedy Building Associates, the present owner of the contaminated property, obtained a jury verdict awarding it $225,000 in compensatory damages and $5,000,000 in punitive damages on its common law claim for strict liability. The district court awarded Kennedy $106,393.23 in response costs Kennedy had already incurred under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Minnesota Environmental Response and Liability Act (MER-LA), and declared Viacom liable for any response costs Kennedy should incur in the future. The court also issued an injunction under the Minnesota Environmental Rights Act (MERA), requiring Viacom to clean up the contamination at the site. The court awarded Kennedy statutory attorneys’ fees, witness fees, and costs in the amount of $1,113,915, and prejudgment interest in the amount of $41,677.89. Viacom appeals everything except the CERCLA and MERLA relief, arguing that the strict liability award was not permissible under Minnesota common law; that the strict liability claim cannot support an award of punitive damages; that the MERA claim is moot because Viacom has entered an administrative consent order concerning the contaminated property; that the attorneys’ fee award was excessive; and that the prejudgment interest was excessive because Viacom had offered to settle the case. We reverse as to the common law strict liability claim and the punitive damages award; reverse and remand the award of injunctive relief with instructions to modify the injunction; remand for adjustment of the fees award; affirm the award of prejudgment interest on the CERCLA and MERLA claims; and reverse the- prejudgment interest on the strict' liability award. Westinghouse owned the property at 2303 Kennedy Street in Minneapolis from the 1920s until 1980. Westinghouse used the building there to house an electrical transformer repair facility. A portion of Westinghouse’s business there was the repair of transformers that were insulated with Inerteen, a Westinghouse product that contained polychlorinated biphenyls, known as PCBs. Chlorobenzenes were used as a solvent to thin the PCBs down to a usable consistency. By the late 1960s, it was recognized that PCBs were potential carcinogens and that they were accumulating, rather than breaking down, in tissues and in the environment. In 1976, Congress passed the Toxic Substances Control Act, which singled out PCBs as a hazardous substance, requiring the EPA to prescribe rules restricting their manufacture, use and disposal. Pub.L. No. 94-469, Title I, § 6, 90 Stat.2020 (1976) (codified at 15 U.S.C. § 2605). In 1979, EPA banned rebuilding of transformers that contained PCB levels of more than 500 parts per million, stating that these operations presented an unreasonable risk of release of PCBs. Polychlo-rinated Biphenyls (PCBs), Manufacturing, Processing, Distribution in Commerce, and Use Prohibitions, 44 FecLReg. 31514 (May 31, 1979) (codified at 40 C.F.R. pt. 671). PCBs and chlorobenzenes are classified as hazardous substances under MERLA and CERCLA. Minn.Stat. § 115B.02, subd. 8(1) (cross referencing 33 U.S.C. § 1321(b)(2)(A)); 42 U.S.C. § 9601(14) (same); 40 C.F.R. § 116.4 (listing hazardous substances). Sites contaminated with hazardous substances are subject to remediation under federal and state law. See 42 U.S.C. § 9604 (CERCLA); Minn. Stat. § 115B.04, subd. 1 (MERLA). In 1971-73, Westinghouse undertook a study of the sites where it used PCBs. The purpose of the study was to ascertain whether PCBs were leaking from those sites and migrating off Westinghouse property, and if so, whether the PCBs were likely to be detected by others and traced back to Westinghouse. The head of the Westinghouse study, Dr. Thomas Mun-son, testified at trial that he examined four such facilities (but not the Minneapolis facility). Munson said, “We found PCBs everywhere we looked.” Munson testified that Westinghouse stopped the study after the initial sampling of four plants showed PCBs were leaving the sites and showing up in wildlife (and fish markets) nearby. On cross examination, Viacom counsel brought out that the four plants sampled were manufacturing, not repair facilities, but Munson said that “it was a given” that repair sites were contaminated and that he told Westinghouse management, It simply wasn’t possible to handle, ah, gallon quantities of PCBs, pumping them into transformers, draining them out of transformers, without having some spillage. And it was just a given at that time that every facility that had been doing that for any length of time would have spilled considerable amounts of PCB. (February 4, 2002, vol 4 p. 105-06.) The district court found, Westinghouse knew during the time it owned the site at issue that there were health risks associated with PCBs, and that PCB contamination was virtually certain to be found at its long-term transformer-repair facilities. (Order of May 31, 2002, slip op. at 3.) Viacom does not argue that this finding was clearly erroneous. The district court found Westinghouse’s operations contaminated the property with PCBs and chlorobenzenes through spillage, overflow of an oil-storage tank, and burning of PCB-contaminated oil in the building’s furnace. Evidence at trial indicated that the site’s soil was contaminated by PCB concentrations as high as 9,100 mg/kg (the allowable level is 1.2 mg/kg) and the groundwater contains concentrations as high as 37,000 p, g/liter (the allowable level is .04 ^ gditer). Expert witness William Welbes testified that the amount of PCB contamination now at the site indicates that approximately 18,000 pounds of PCBs have been spilled there, resulting in contamination of 25,000 tons of soil. Chlo-robenzenes were also present in the groundwater. Welbes testified that, because the site was also contaminated with mineral oil, which is a solvent for the PCBs, the PCBs at the site are presently migrating and contaminating surrounding soil and groundwater of neighboring properties. The chlorobenzenes are very water soluble and they “show every indication of having left the site and they’re still migrating.” The district court found that despite Westinghouse’s knowledge that PCB contamination was “virtually certain” to exist on the property, Westinghouse sold the site to Hillcrest Development Company in 1980 without conducting any investigation or decontamination at the site and without disclosing the nature of its work at the site. (Order of May 31, 2003, slip op. at 3.) Gerald Trooien, a partner in Kennedy Building Associates, bought the property from Hillcrest in 1982 and transferred it to Kennedy. The district court found that at the time Trooien bought the property, he did not know and had no reason to know that Westinghouse had disposed of hazardous substances , at the site. (Id. at 4.) In 1997 Kennedy entered negotiations to sell the property back to Hillcrest. In preparation for the purchase, Hillcrest hired an environmental consultant, who discovered the PCB contamination. Hill-crest withdrew its offer to purchase the site. Kennedy reported the contamination to the Minnesota Pollution Control Agency and entered the Agency’s voluntary cleanup and investigation program, which required Kennedy to undertake field investigations of the contamination of the soil and groundwater in order to avoid being referred to the federal Superfund program. The Kennedy Building site was listed on the Minnesota Pollution Control Agency’s permanent list of priorities on September 27, 2000. In 1999 Kennedy filed this suit in state court seeking relief under MERLA and MERA, as well as under the common law of nuisance, negligence and strict liability. Viacom removed the case to federal court on grounds of diversity of citizenship, and Kennedy amended its complaint to add claims for CERCLA relief and punitive damages. Viacom filed a counterclaim asserting Kennedy was liable under CERC-LA and MERLA, and seeking injunctive relief against Kennedy under MERA. At the time of trial, .Kennedy had incurred costs of $106,393.23 in investigating the contamination. The Minnesota Pollution-Control Agency had required it to file a deed restriction showing the property was contaminated, which meant that Kennedy could, not do. anything that would disturb the soil on the property without obtaining Agency approval. The Agency issued Kennedy an assurance letter stating that Kennedy did not contaminate the site. Viacom and the Agency entered an administrative consent order on the eve of trial, January 22, 2002, in which Viacom agreed to conduct a remedial investigation, submit a feasibility study, develop a response action plan, and implement such a plan. The common law and punitive damages claims were submitted to a jury, which found in favor of Viacom on the negligence and nuisance claims, but which awarded $225,000 in actual damages and $5,000,000 in punitive damages on the strict liability claim. Because the CERCLA, MERLA, and MERA claims invoked the court’s equitable jurisdiction, the district court decided those claims. The court found that Kennédy proved its CERCLA and MER-LA claims against Viacom and that Viacom did not prove its CERCLA and MERLA claims - against Kennedy. The court awarded Kennedy response costs ■ of $106,393.23 for costs already incurred and declared Viacom liable for future response costs. The court held that Kennedy proved its MERA claim and accordingly the court enjoined Viacom “to remediate the site’s soil, groundwater, and. building interior so that the previously-placed deed restriction may be removed, pursuant to Minn.Stat. § 116B.07.” Kennedy filed post-trial motions seeking prejudgment interest and an award of attorneys’ fees, expert witness’s fees and costs. The motion was referred to a magistrate judge, who recommended the award of $41,677.89 in prejudgment interest on the CERCLA response costs and the actual damages avyard, and an award of $1,113,915 for attorneys’- fees, expert witness’s fees, and costs. The district court adopted the magistrate judge’s recommendation and entered judgment accordingly. I. Viacom argues that the district court erred in interpreting Minnesota common law to hold a land-owner strictly liable to its successor in interest for contamination of land. The district court interpreted the common law tort derived from the English case of Rylands v. Fletcher, LR 3 H.L. 330 (1868), to provide a cause of action to Kennedy against Viacom for the escape of PCBs and chlorobenzenes onto the soil and groundwater of the property. Viacom argues that the Rylands rule only creates a cause of action for land-owners against neighbors who cause harm by their use of nearby property. Viacom contends that Minnesota has not and would not extend the Rylands rule to create a cause of action in favor of a land-owner against its predecessor in title for harm done to the land when the predecessor owned it. This Court reviews the district court’s determinations of state law de novo. Salve Regina Coll. v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). Our task is to ascertain how the Minnesota Supreme Court would answer the question before us; if no decision of that court directly addresses the question, we look at “related state court precedents, analogous decisions, considered dicta, and other reliable sources in an effort to determine what the Minnesota Supreme Court’s decision would be.” Union Pac. R.R. v. Reilly Indus., Inc., 215 F.3d 830, 840 (8th Cir.2000). In Rylands, the owners of a mill, Ry-lands and Horrocks, built a reservoir on land north of their mill, to supply their mill with water. The plaintiff, Fletcher, leased coal mines on a neighboring close of land between the reservoir and the mill. The water from the reservoir burst into old, disused shafts that communicated with Fletcher’s mine and flooded the mine. Fletcher sued and prevailed in the Court of Exchequer Chamber, but Rylands and Horrocks appealed, arguing that because they did not know the shafts communicated with the mine, they were not negligent, and therefore they could not be liable. The House of Lords held that Fletcher did not have to prove negligence, since “the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril.” Id. at 339. Lord Cairns’s opinion recited the lower court’s statement of the ratio decedendi of the case expressly depending on the relationship of neighbor to neighbor: [I]t seems but reasonable and just that the neighbour who has brought something on his own property (which was not naturally there), harmless to others so long as it is confined to his own property, but which he knows will be mischievous if it gets on his neighbour’s, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. Id. at 340. “Minnesota was one of the first American jurisdictions to adopt the strict liability rule of [Rylands ],” Minnesota Mining & Mfg. Co. v. Travelers Indem. Co., 457 N.W.2d 175, 183 (Minn.1990), and was a leader in the development of the tort in this country, Jed Handelsman Shugerman, The Floodgates of Strict Liability: Bursting Reservoirs and the Adoption of Fletcher v. Rylands in the Gilded Age, 110 Yale L.J. 333, 348 (2000). Beginning with a case involving a tunnel collapse that flooded neighboring property in Cahill v. Eastman, 18 Minn. 324, 1872 WL 3309 (1872), Minnesota applied the theory in a wide variety of fact situations. See, e.g., Sachs v. Chiat, 162 N.W.2d 243, 246 (1968) (pile driving damaged neighbor’s house); Bridgeman-Russell Co. v. City of Duluth, 158 Minn. 509, 197 N.W. 971 (1924) (water reservoir flooded neighbor’s property); Wiltse v. City of Red Wing, 99 Minn. 255, 109 N.W. 114, 115 (1906) (water reservoir flooded neighbor’s house); Hannem v. Pence, 40 Minn. 127, 41 N.W. 657, 658 (1889) (ice fell on plaintiff from defendant’s unsafely designed building). In particular, Minnesota applied the theory to pollution and ground water contamination. Minnesota Mining & Mfg. Co., 457 N.W.2d at 183; Berger v. Minneapolis Gaslight Co., 60 Minn. 296, 62 N.W. 336 (1895) (petroleum contaminated neighbors’ property). The Minnesota Supreme Court summarized the rule as follows: [A] party who, for his own profit, keeps on his premises anything not naturally belonging there, the natural tendency of which is to become a nuisance, and to do mischief if it escapes, is liable if it escapes, without proof of negligence, for all damages directly resulting therefrom. Wiltse, 109 N.W. at 115 (emphasis in original). The Minnesota Supreme Court has never entertained the question of whether the Rylands rule applies to the case of a landowner suing its predecessor in title for damage to the land antedating the plaintiffs ownership of the land. Kennedy does not claim that Minnesota has yet made the leap from liability to neighbors to liability to successors in title, but instead argues that Minnesota courts would do so, relying on T & E Indus. v. Safety Light Corp., 123 N.J. 371, 587 A.2d 1249, 1255-59 (1991), in which the New Jersey Supreme Court extended Rylands liability to the claim of a land-owner against its predecessor in title for contaminating the land. Accord Hanlin Group, Inc. v. Int’l Minerals & Chem. Corp., 759 F.Supp. 925, 934 (D.Me.1990); see also Interstate Power Co. v. Kansas Cibyl Power & Light Co., 909 F.Supp. 1224, 1240 (N.D.Iowa 1991) (denying summary judgment on strict liability claim brought by land-owner against predecessor in title for polluting land, but without discussing issue of whether strict liability should be extended to successors in title). The majority of courts that have considered this question have agreed that strict liability should not be extended to cover claims by a subsequent owner of the land against an earlier owner. Rosenblatt v. Exxon Co., 335 Md. 58, 642 A.2d 180, 185-88 (1994); Hicks v. Humble Oil & Refining Co., 970 S.W.2d 90, 97 (Tex.Civ.App.1998); Hydro-Mfg., Inc. v. Kayser-Roth Corp., 640 A.2d 950, 958 (R.I.1994); Futura Realty v. Lone Star Bldg. Ctrs., 578 So.2d 363, 365 (Fla.Dist.Ct.App.1991); Andritz Sprout-Bauer, Inc. v. Beazer East Inc., 174 F.R.D. 609, 623-26 (M.D.Pa.1997); Cross Oil Co. v. Phillips Petroleum Co., 944 F.Supp. 787, 789-90 (E.D.Mo.1996); 325-343 E. 56th St. Corp. v. Mobil Oil Corp., 906 F.Supp. 669, 677-78 (D.D.C.1995); Dartron Corp. v. Uniroyal Chem. Co., 893 F.Supp. 730, 740 (N.D.Ohio.1995); 55 Motor Ave. Co v. Liberty Indus. Finishing Corp., 885 F.Supp. 410, 423 (E.D.N.Y.1994); Wellesley Hills Realty Trust v. Mobil Oil Corp., 747 F.Supp. 93, 101-02 (D.Mass.1990) (buyer knew of contamination at time of land sale); see also City of Minneapolis v. Arkla, Inc., No. 4-91-CV-44, 1993 WL 61827, at * 2 (D.Minn.1993) (unpublished) (Under Minnesota law, claim for strict liability for ultrahazardous activities is “available only to adjoining or neighboring landowners.”). We .must determine what the principle would be for limiting or extending Rylands liability and ascertain whether the Minnesota Supreme Court would accept or reject such a principle. Viacom contends that the strict liability-rule was “developed to protect the owner of property adjacent to a site from which a harmful release occurs.” Minnesota has not'limited the Rylands cause of action to cases in which the plaintiff and defendant were neighboring land-owners. The Minnesota Supreme Court once applied the doctrine in favor of a plaintiff who was not a land-owner, but was merely walking by the defendant’s unsafely designed building when ice fell from the building onto the public sidewalk. Hannem v. Pence, 40 Minn. 127, 41 N.W. 657 (1889). Furthermore, in Cahill the Minnesota Supreme Court applied the rule to a defendant that did not own the land on which it created a hazard. 18 Minn. 324, 1872 WL 3309, at *5 (“That the defendants did not own the soil could not of course lessen the liability, if any, which they might, because of their operations therein, incur with respect to plaintiffs. If the owner could not have made the excavation with impunity, certainly one who was not the owner could not.”). Moreover, it made no difference that the defendant was no longer in possession or control of the instrumentality that caused the hazard. Id. “If [the defendants] were responsible for the consequences of the excavation, they could not evade them by giving up such possession and control to others.” But cf. Mahowald v. Minnesota Gas Co., 344 N.W.2d 856, 860 (Minn.1984) (“close examination” of Minnesota strict liability cases, including Cahill, shows that in each the instrumentality that caused damage was in “exclusive control” of the person sought to be charged.). Viacom contends that the rationale for the Rylands rule is that a land-owner cannot protect itself from the activities of neighboring land-owners, and that such a rule should not apply to a successor landowner because it could have avoided the harm by inspecting the property before it bought it. This reasoning finds support in case law from other jurisdictions, but is questionable in Minnesota. One of the leading cases on this issue concluded that a key ingredient of Rylands was the neighboring land-owner’s inability to protect himself from his neighbor’s dangerous activities; accordingly, the court held that a land-owner who purchased the property after the harm was done could have avoided encountering the harm and therefore could not recover under Rylands. Subsequent users ... are able to avoid the harm completely by inspecting the property prior to purchasing or leasing it. Thus, it is not unreasonable to expect subsequent users to bear the risk of such harm. We think, however, that it would be unreasonable to hold the prior user liable to remote purchasers or lessees of commercial property who fail to inspect adequately before taking possession of the property. Rosenblatt v. Exxon Co., 335 Md. 58, 642 A.2d 180, 188 (1994). Accord 325-343 E. 56th St., 906 F.Supp. at 677-78. However, this rationale would also defeat a Rylands cause of action by plaintiffs who bought a property after neighbors had created a hazard, at least where the hazard was obvious. See Rosenblatt, 642 A.2d at 186 (strict liability limited to claims by occupier of land harmed by actions abnormally dangerous in relation to area, when carried on by “contemporaneous occupier” of neighboring land). Kennedy contends that this reasoning is inconsistent with the Minnesota Supreme Court’s decision in Cahill. There, the Minnesota Supreme Court adopted the Rylands rule in a case in which defendants’ tortious act was complete before the plaintiffs obtained an interest in the land. The defendants, Eastman et al., constructed a tunnel on the land of the St. Anthony Falls Water Power Co., the “assignee” of plaintiffs landlord, Steele. 18 Minn. 824, 1872 WL 3309, .at *4. The tunnel was built before October 4, 1869, and the plaintiffs leased the mill on adjoining property shortly afterwards, in December 1869 and January 1870, respectively. Id. at *4-5. River water burst into the tunnel, causing erosion the length of the tunnel on October 4, 1869, before the plaintiffs became lessees. After the plaintiffs leased the mill, the tunnel flooded again in April 1870, this time eroding the land on which the mill stood. Id. at *5. Since the Cahill plaintiffs entered the leasehold after the tunnel had been built and one flood had happened, Kennedy contends that it was not fatal to the plaintiffs case that they acquired the property after the defendant created the hazardous condition or even after the hazard had manifested itself. The Minnesota Supreme Court did not inquire into whether the plaintiffs could have discovered the hazard by inspecting the property before entering into it. Minnesota law would thus not appear to restrict the Rylands cause of action to plaintiffs in possession of property at the time the defendant created the hazard, and it is questionable whether a neighbor’s claim would be defeated by a showing that he could have learned of the hazard before acquiring the property. (However, the Cahill plaintiffs were in possession of the land at the time of the flood that eroded their mill; thus, they were not merely purchasers of land that had already suffered the damage for which they sued.) Furthermore, a rule restricting Rylands liability on the ground that subsequent purchasers can inform themselves of the condition of the property would not fit a case such as this one, where the district court found that a visual inspection of the property did not reveal the contamination and that Kennedy “did not know, and had no reason to know, when [it] purchased the site, that Westinghouse had disposed of hazardous substances at the site.” We do, however, conclude that there is a principle that precludes a Ry-lands cause of action by a subsequent owner of the affected land. Minnesota’s version of the Rylands rule has required that there be an “escape” of the instrumentality causing the harm. In Berger, the Minnesota Supreme Court summed up the rule: The essential condition of liability, without proof of negligence on the part of the owner, for injury to others by the escape of things kept by him on his own premises, is that the natural tendency of the things kept is to become a nuisance or to do mischief, if they escape. The authority of Cahill v. Eastman is not to be extended beyond the class of cases possessing all of the elements upon which the judgment of the court was based. 62 N.W. at 338 (emphasis added). With this admonition in mind, we may not extend the Rylands rule to a case in which the harm was not caused by an escape. Kennedy argues that the release of the PCBs and chlorobenzenes was an escape, and that it is not necessary for the escape to cross a property line. However, in Hannem v. Pence, the case in which the ice fell from the defendant’s building onto the plaintiff, who was walking on the public sidewalk, the Minnesota Supreme Court characterized the tort as one in which the defendant in effect spreads his dominion past his own property: His [the defendant’s] act was an attempt to extend his right as proprietor béyond the limits of his own property, at the expense of the safety of the traveling public. He was bound at his peril to keep the ice and snow that collects on his own roof within his own limits, and if the shape of his roof is such as necessarily or naturally to throw it upon the street, he is responsible for all damages, precisely as if he had under the same circumstances thrown it upon the premises of an adjacent owner. 41 N.W. at 659. This reasoning simply does not apply to a suit based on harm done to the defendant’s own property. Kennedy rightly points out that not all courts limit strict liability to cases involving an escape. See Wellesley Hills, 747 F.Supp. at 102 (“Of course, as the rule developed, courts applied it to situations which did not- involve an ‘escape’ from the land.”).' -This view is reflected in Restatement '(Second) - § 519. However, the Minnesota Supreme Court has emphatically not adopted Restatement (Second) § 519, see Mahowald, 344 N.W.2d at 860-61, but has adhered to its own interpretation of the Rylands rule. Kennedy further argues that there was evidence that the PCBs did migrate across the property line. Be this as it may, Kennedy’s suit was to recover for the damage to the 2303 Kennedy Street property, not for damage caused by the escape of the pollutants onto other people’s property. For instance, Kennedy’s complaint alleged: “Defendant is strictly liable for the damages resulting as a natural consequence from the release of PCBs and related hazardous substances on the Property .... ” (emphasis added). We conclude that this case does not fit the pattern of Rylands liability under Minnesota law. Therefore, we must reverse the district court’s entry of judgment for Kennedy on the jury’s verdict of strict liability and accompanying punitive damages. II. Viacom next contends that the injunction entered under MERA, Minn.Stat. § 116B.03, is moot because Viacom has entered a consent order with the Minnesota Pollution Control Agency, in which Viacom agreed to conduct a remedial investigation, submit a feasibility study, develop a response action plan, and implement such a plan. The- administrative consent order does not state substantive standards for the remediation of the site. Instead, it requires Viacom to design and implement a remedial plan whose terms are yet unknown. The operative language of the consent order requires Viacom to Perform the following response actions in accordance with the terms and conditions of this Order: 1. Prepare a Remedial Investigation Work Plan (RI Work Plan); 2. Conduct the Remedial Investigation (RI) in accordance therewith; 3. Submit a Remedial Investigation Report (RI Report); 4. Conduct a Feasibility Study (FS); 5. Submit a Feasibility Study Report (FS Report); 6. Develop a Response Action Plan (RAP);, and 7. Implement the Response Action Plan, including any operation and maintenance of remedial action systems, monitoring, and institutional controls.... The substance of the clean-up will eventually be determined by negotiation between Viacom and the Agency, with remedies in case negotiations break down. Viacom is to submit to the Agency the various studies and plans called for in the order. The Agency is to approve the documents or propose revisions, to which Viacom then must respond. If the parties do not come to agreement, the Agency can do the work itself and sue Viacom. In the resulting lawsuit, the issues would be limited to the question of whether the Agency’s clean-up was “reasonable and necessary to protect the public health and welfare and the environment.” The district court found that Viacom had not yet fulfilled the obligations imposed on it in the consent order. The court found that because “the site’s soil and groundwater PCB concentrations exceeded the [Agency’s] acceptable limits, [Kennedy] was required to place a deed restriction on the property. The restriction notifies potential purchasers of ,the contamination and restricts the owner’s use and development options while the contamination remains.” The court granted “judgment in favor of [Kennedy] and against Viacom, and affirmatively enjoins Viacom to remed-iate the site’s soil, groundwater, and building interior so that the previously-placed deed restriction may be removed, pursuant to Minn.Stat. § 116B.07.” Viacom argues that the administrative consent order is entitled to some sort of preemptive effect because the Agency is a party to it. We must consult MERA itself to determine whether it gives the consent order a preemptive effect. MERA allows the state attorney general to intervene in MERA litigation pursued by others, Minn.Stat. Ann. § 116B.03, sübd. 3, but it does not appear from the statute that the attorney general replaces the existing plaintiff or alters the plaintiffs standing to pursue declaratory or equitable relief in the name of the state. The Attorney General has not chosen to intervene in this case. This is a critical difference between the procedures provided by MERA and those provided by the Clean Water Act, upon which Viacom relies in citing Comfort Lake Ass’n, Inc. v. Dresel Contracting, Inc., 138 F.3d 351 (8th Cir.1998). Under the federal Clean Water Act, various statutory provisions provide that citizen suits are barred or preempted by agency action; in Comfort Lake these statutory provisions led us to conclude that a citizen suit had no substantive claim for civil penalties once such penalties had been recovered by the state in administrative proceedings. Comfort Lake, 138 F.3d at 356-57. Viacom points to no such provisions in MERA. Viacom contends that, in light of the administrative consent agreement, MERA relief is precluded by Minn.Stat. § 116B.03 subd. 1, which states, “[N]o action shall be allowable under this section for conduct taken by a person pursuant to any environmental quality standard, limitation, rule, order, license, stipulation agreement or permit issued by the pollution control agency, department of natural resources, department of health or department of agriculture.” Kennedy obviously did not sue for any action taken pursuant to the consent agreement since the consent agreement was not signed until the eve of trial and, even then, contained no substantive terms other than agreements to study and arrive at actual clean-up measures in the future. The preemptive scope of section 116B.03, subd. 1, appears to depend on whether the injunction directly contradicts the Agency stipulation or can co-exist with the stipulation. In Williams Pipeline Co. v. Soo Line R.R., 597 N.W.2d 340 (Minn.Ct.App.1999), the Minnesota Court of Appeals rejected a similar argument that an Agency consent order preempted a MERA claim. Williams owned a pipeline transporting petroleum products through a Superfund site. .It'entered a consent order with the Minnesota Pollution • Control Agency and EPA to remove the pipeline from the site, but the consent order did not specify where the replacement pipeline should be placed, although Williams could only reroute within the site if EPA and the Minnesota Pollution Control Agency approved. Id. at 342-43. Williams proposed to reroute its pipeline under a railroad yard owned by MT Properties and sought an easement by condemnation. Id. at 343. MP brought a MERA claim to enjoin the rerouting. The trial court found that rerouting the pipeline in the railroad yard would lead to shifting, mixing, spreading and dispersion of the existing contamination, id. at 345, but concluded that the MERA claim was barred by Minn.Stat. § 116B.03, subd. 1 because the claim challenged an action taken pursuant to the Minnesota Pollution Control Agency and EPA consent order. Id. at 343. The Court of Appeals, reversed, holding: Because the consent order allows Williams to choose among several alternatives, its decision to seek this particular easement and rerouting does not constitute an action taken “pursuant to” an order or stipulation of the [Minnesota Pollution Control Agency], and section 116B.03 is inapplicable. Id. at 346. Thus, a consent order that specifies general but not particular actions a defendant must take to clean up a site does not preempt a MERA claim based on aspects of the defendant’s actions that were not required by the consent order. On the other hand, MERA does not authorize an injunction that imposes standards conflicting with substantive standards affirmatively imposed by the Minnesota Pollution Control Agency or one of the other agencies named in section 116B.03, subd. 1. Cf. Holte v. State, 467 N.W.2d 346, 349 (Minn.Ct.App.1991) (affirmative order of Department of Agriculture pursuant to Grasshopper Control Act was .not amenable to MERA challenge). Requiring a direct conflict with agency action to find preemption takes cognizance of both the language in section 116B.03, subd. 1, protecting administrative action from MERA challenge, and the language of Minn.Stat. § 116B. 12, which provides that the “rights and remedies provided [in MERA] shall be in addition to any administrative, regulatory, statutory or common law rights and remedies now or hereafter available.” See State by Fort Snelling State Park Ass’n v. Minneapolis Park & Rec. Bd., 673 N.W.2d 169, 177 (Minn.Ct.App.2003) (citing § 116B.12 in declining to find that MERA claim was preempted by administrative proceedings). Because Viacom and the Minnesota Pollution Control Agency have, as yet, not agreed upon substantive terms of remediation, there is as yet no conflict between any order of the Minnesota Pollution Control Agency and the district court’s order. Whether any conflict would ever arise is completely speculative, and we cannot find preemption based on hypothetical facts. Viacom contends that the administrative stipulation rendered moot the MERA claim. We must consider whether a defendant's entry into an agreement with a third party to negotiate a resolution to the violation on which injunctive relief is based moots a claim for injunctive relief. "Simply stated, a case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)). The "heavy" burden of proving mootness falls on the party asserting the case has become moot. Id. A case becomes moot if it can be said with assurance that there is no reasonable expectation that the violation will recur or if interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. Id. Viacom contends that by entering the administrative consent order, it responded to the continuing contamination of the soil and groundwater at the site. But, as the district court found, Viacom did not abate the contamination. Whether abatement ever occurs depends on future events entirely outside Kennedy's control. As the Supreme Court pointed out in Friends of the Earth, Inc. v. Laidlaw Envt'l Servs., Inc., 528 U.S. 167, 191-92, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000), the question of mootness, unlike that of standing, is likely to be raised after years of litigation when the case is far advanced. Because of that societal investment in the case, "to abandon the case at an advanced stage may prove more wasteful than frugal." Id. at 192, 120 S.Ct. 693. If the suit were to be dismissed upon an agreement between third parties to perform at some time in the future, if "some impediment arises or some prolonged delay ensues" in the planned performance, the plaintiff would be "at square one." Kostok v. Thomas, 105 F.3d 65, 66 (2d Cir.1997). In this case, Kennedy is not a party to the unperformed administrative consent agreement. If the Agency fails to devote the resources to see that Viacom eventually performs, Viacom does not suggest that Kennedy can enforce the agreement. Viacom cites Comfort Lake Ass'n. Inc. v. Dresel Contracting, Inc., 138 F.3d 351 (8th Cir.1998), in which an action to enjoin a contractor from violating a pollution discharge permit was dismissed as moot after the construction project which was causing the violations was completed and the permit had terminated. It also cites Grandson v. Univ. of Minnesota, 272 F.3d 568, 574 (8th Cir.2001), cert. denied, 535 U.S. 1054, 122 S.Ct. 1910, 152 L.Ed.2d 820 (2002), in which a claim seeking an injunction requiring the University to establish a women's hockey team was deemed moot because the University had already established such a team at the behest of the United States Department of Education. Additionally, Viacom cites Mississippi River Revival, Inc. v. City of Minneapolis, 319 F.3d 1013, 1015 (8th Cir.2003), in which another Clean Water suit seeking to force defendants to obtain discharge permits was moot once the permits were obtained. Id. at 1016. Civil penalties under the Clean Water Act were not available for "wholly past violations" and the defendants were able to prove that it was "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Id. (quoting Laidlaw, 528 U.S. at 189, 120 S.Ct. 693). The claim for civil penalties was therefore moot as well as the claim for injunctive and declaratory relief. In each case Viacom cites, the condition on which the suit was based had been remedied. Here, it has not. Even assuming for the sake of argument that entering an administrative agreement to do something in the future is the same thing as having already done the thing for purposes of mootness analysis, in this particular case, the consent order does not contain substantive standards for remediation of the contamination. Relief granted in another tribunal can moot a claim, but only where the relief granted is complete. See Lewis v. BT Inv. Managers, Inc., 447 U.S. 27, 35 n. 5, 100 S.Ct. 2009, 64 L.Ed.2d 702 (1980); 13A Charles Alan Wright et al., Federal Practice and Procedure § 3533.2 & n.31 (1984 & 2003 Supp.) (“Partial relief in another action, on the other hand, does not moot an action seeking additional relief”). The district court ordered Viacom to “remediate the site’s soil, groundwater, and building interior so that the previously-placed deed restriction may be removed.” Testimony at trial indicated that a deed restriction is required when the level of PCBs on the property exceeds the Minnesota Pollution Control Agency’s reference value, which is 1.2 milligrams per kilogram. The site had PCB concentrations as high as 9,100 milligrams per kilogram. The consent order neither orders Viacom to abate the level of PGBs to any particular level or to make it possible to clear the title restriction. Therefore, the relief granted by the consent order is not the same as that granted by the MERA injunction. Viacom has not proven that the MERA injunction is moot. However, the injunction is subject to another serious objection. We conclude that MERA does not support the injunction as drawn, even without regard to the effect of the administrative consent order. Viacom contends that the private attorney general-type suit available under MERA is preventative in nature and does not authorize the court to order clean-up of an existing toxic waste site. MERA provides that any partnership, corporation, association, organization or other entity with members residing in Minnesota may bring a civil action for declaratory or equitable relief in the name of the state of Minnesota “for the protection of the air, water, land, or other natural resources located within the state ... from pollution, impairment, or destruction.” Minn.Stat. § 116B.03, subd. 1. “Pollution, impairment or destruction,” is defined as “any conduct by any person” which violates, or is likely to violate a state standard, permit, etc. or which “materially adversely affects or is likely to materially adversely affect the enviionment.” Minn. Stat. § 116B.02, subd. 5. Viacom cites Werlein v. United States, 746 F.Supp. 887, 898 (D.Minn.1990), vacated in part on other grounds, 793 F.Supp. 898 (D.Minn.1992), in which the court observed: “Generally, MERA does not seem to contemplate affirmative injunctive relief that essentially amounts to an order to clean up past pollution. ... In fact, If MERA were so construed, courts could use MERA to order clean-up of all pollution anywhere within the state. Under plaintiffs’ definition, whoever is responsible for that pollution is engaging in conduct by not cleaning it up.” The language Viacom quotes from Werlein was followed by a caveat that Viacom omits, interpreting MERA to authorize injunctive relief to clean up hazardous substances when such substances create ongoing pollution of underground water and lakes, which constitute “separate natural resources.” 746 F.Supp. at 898. Even under the- view that MERA only protects the land, air and water from current or prospective harm, the statute applies, because both are present here. While MERA may not authorize the Court to order a total cleanup at the Trio Solvents site, the Court believes that MERA empowers it to order defendants to abate any continuing contamination of underground or surface waters. Id; accord Soo Line R.R. v. B.J. Carney & Co., 797 F.Supp. 1472, 1486-87 (D.Minn.1992) (“[T]he failure to remedy a toxic waste site is considered ongoing actionable conduct under MERA.... Because the complaint alleges that the defendants’ activities have caused hazardous substances to be released that will continue to contaminate the soil and groundwater at the site, the Court finds that Soo Line has properly pleaded a claim under MERA.” (citation omitted)). These cases from the District of Minnesota appear to us to have arrived at the correct interpretation of MERA, which is that the statute can require remediation of past pollution to the extent past deposits pose a threat of continuing contamination of natural resources, including soil and water. Viacom stipulated in the administrative consent order that “there ... continue to be releases or threatened releases, within the meaning of MinmStat. § 115B.02, subd. 15, of these hazardous substances from the Kennedy Building Site.... ” At trial, Kennedy’s expert William Welbes testified that the PCBs on the Kennedy site continued to migrate because they were accompanying non-PCB transformer oil, which would migrate with the groundwater. Welbes also testified that the chlo-robenzenes on the site would also migrate. The district court found: “The PCBs continue to migrate in the soil and groundwater today due to the presence of transformer mineral oil constituents.” The district court’s Conclusions of Law pertaining to Kennedy’s MERA claim state in their entirety: [Kennedy] claims that Viacom is liable pursuant to the Minnesota Environmental Rights Act, MinmStat. §§ 116B.01 et seq. The Court concludes that [Kennedy] has proven its MERA claim by the preponderance of the evidence. Accordingly, the Court grants judgment in favor of [Kennedy] and against Viacom, and affirmatively enjoins Viacom to remediate the site’s soil, groundwater, and building interior so that the previously-placed deed restriction may be removed, pursuant to Minn.Stat. § 116B.07. The order in this case exceeds the relief authorized by MERA. The district court’s injunction is not aimed at prevention of new pollution of separate natural resources, but orders complete clean-up of the Kennedy site, sufficient to clear the deed restriction, without any reference to what would be necessary to prevent future pollution. Testimony at trial indicated that a deed restriction is required when the level of PCBs on the property exceeds the Minnesota Pollution Control Agency reference value, which is 1.2 milligrams per kilogram. A PCB level of more than 1.2 milligrams per kilogram does not necessarily mean that the contamination threatens neighboring land or water. Kennedy’s expert Welbes testified at trial, “Cleanup is not necessarily required [when the PCB levels exceed 1.2] as long as it can be proven that it does not pose an immediate health risk and that the plume is stable.” Jan. 30, 2002, vol. 2, p. 166. Although there is evidence of continuing migration of the contaminants, the injunction is not tailored to address only that problem. Therefore, the injunction cannot be upheld as drawn. The injunction must be redrawn to order only the relief authorized by MERA, that is, the prevention of ongoing releases of PCBs and chloroben-zenes into soil and groundwater. We must remand the injunction for more precise definition of the specific acts required of Viacom. See United States v. Articles of Drug, 825 F.2d 1238, 1247 (8th Cir.1987). III. The district court awarded attorneys’ fees, expert witness fees and costs authorized under MERLA, MinmStat. § 115B.14, in the amount of $1,113,915. Viacom contends that the fees and costs award included expenses incurred in litigating claims other than the MERLA and CERCLA claims, and that there is no statutory authorization for award of fees on those claims. The district court’s decision to award fees under MERLA to the prevailing party and the amount of such an award will not be disturbed absent a clear abuse of discretion. Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930, 939 (8th Cir.1995); Musicland Group, Inc. v. Ceridian Corp., 508 N.W.2d 524, 535 (Minn.Ct.App.1993). “A request for attorney’s fees should not result in a second major litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The starting point for determining the fee award is the number of hours reasonably expended on the case multiplied by a reasonable hourly rate. Musicland Group, 508 N.W.2d at 535. The magistrate judge to whom the district court referred the fees litigation conducted this analysis, and Viacom does not demonstrate an abuse of discretion with regard to this analysis. Where a plaintiff succeeds on some claims in litigation and fails on others, the court must decide first, whether the claims involve a common core of facts and were based on related legal theories; and second, whether the plaintiffs level of success justifies basing the fee award on the hours reasonably expended. Id. (citing Hensley, 461 U.S. at 430, 103 S.Ct. 1933). No fee can be awarded on unsuccessful claims that were not related to the successful claim. Hensley, 461 U.S. at 434-35, 103 S.Ct. 1933. Where successful and unsuccessful claims involve a common core of facts and related theories, it will generally be impracticable to separate the hours spent on the claims, and rather than trying to do so, the court should focus on the overall relief the plaintiff obtained in relation to the time reasonably spent on the litigation. Id. at 435, 103 S.Ct. 1933. In assessing whether claims are so related that the fees cannot practicably be severed, one consideration is whether the “types of relief requested” under the various claims are similar or have differing purposes. Musicland, 508 N.W.2d at 535. Apportionment of fees between successful and unsuccessful claims is entrusted to the district court’s discretion. Gopher Oil Co. v. Union Oil Co., 955 F.2d 519, 527 (8th Cir.1992). Where the MERLA claim is accompanied by other claims for which no statutory fees are available, as in this case, the relationship between eligible and non-eligible claims is subject to the same analysis as the relationship between successful and non-successful claims. See id. (successful common law fraud claim had different purpose than CERCLA and MERLA claims and therefore fees were not com-pensable); Musicland, 508 N.W.2d at 535 (successful common law claims all intertwined with MERLA and therefore fees compensable). The magistrate judge considered the in-tertwinement question and concluded that “all claims litigated shared a common core of facts with the MERLA claim rather than an “overriding, or separate and distinct” purpose. Consequently, attorneys fees and costs[s] are recoverable because [Kennedy] had a high degree of success. At trial [Viacom] was found 100% liable for clean-up, and [Kennedy] was 0% liable.” The district court awarded fees in accordance with the magistrate’s recommendation. Viacom argues that the time spent on the MERA claim is not compensable and should be separated from the compensa-ble fees because the MERA claim sought injunctive relief which was not available under MERLA. The MERLA claim resulted in a judgment for Kennedy’s past response costs and a declaration that Viacom is “liable for all future response costs, pursuant to MinmStat. § 115B.11, subd. 2(b).” Damages were not available under MERA, Minn.Stat. § 116B.03, and the MERA injunction in this case directed Viacom to clean up the contamination, rather than reimbursing Kennedy for doing so. Viacom cites Gopher Oil, in which we remanded for separation of fees incurred in litigating a fraud claim, from those incurred in litigating a MERLA claim. 955 F.2d at 527. We held that the purpose of the fraud claim was to protect the plaintiff from contribution claims resulting from its ownership of the contaminated facility, and this “overriding” purpose mandated separation of the fees notwithstanding intertwinement of the claims. Id. Under the reasoning of Gopher Oil, the distinction in the aims and purposes of the MERLA claim and the MERA claim is sufficient to require the district court to separate out the fees incurred in furtherance of the MERA claim, to the extent practicable. Viacom makes the same argument with regard to Kennedy’s claim for punitive damages, but Kennedy’s fee petition stated that it excluded from its fee request the hours spent solely in furtherance of its punitive damages claim, and Viacom does not attempt to demonstrate that this is incorrect. Viacom also contends that it should not be liable for fees incurred after its settlement proposal of June 18, 2001. We reject the contention that the June 18 proposal can be given such an effect, for reasons discussed in section IV, below. We must remand for the district court to reduce the fee award by the amount of fees attributable to the MERA claim. IV. On June 18, 2001, Viacom sent Kennedy an offer of settlement consisting of an eight-page proposed agreement under which Viacom would undertake clean-up operations “to the extent, and only to the extent, required by any governmental regulatory agency having the requisite authority and jurisdiction” and would also pay $400,000 to Kennedy. Under the proposal, if Viacom damaged the building during remediation, “Viacom shall ... if appropriate in the sole discretion of Viacom .. restore any impaired premises to substantially the same condition as existed immediately prior to the implementation of the investigation and remediation.” (emphasis added). The agreement did not specify any substantive standards for remediation of the contamination and in fact contained the following prohibition: Prohibition. [Kennedy] shall not, directly, indirectly, or in any manner, seek to influence the actions or decisions of any governmental regulatory agency concerning the soil on the Property or groundwater beneath or adjacent to the Property, or the extent of Viacom’s obligations with respect thereto. To the extent that [Kennedy] violates this prohibition, [Kennedy] shall be and become solely responsible for the investigation and remediation of the soil on the Property and the groundwater beneath and adjacent to the Property. This settlement proposal was made approximately six months before the Minnesota Pollution .Control Agency consent order was executed. Thus, the purport of the proposal was for Viacom to do whatever unspecified action a government agency might later decide on, if any, with Kennedy barred from any input into the appropriate measures to be taken with regard to abatement of hazardous waste on its own property. Viacom argues that this proposal stopped the accrual -of prejudgment interest under Minn.Stat. § 549.09, subd. 1(b). The magistrate judge concluded that Viacom’s offer to settle was “not sufficiently precise” to afford it ■ the benefit of the offer-counter offer mechanism in the Minnesota statute. This apparently referred to the lack of substantive standards for the clean-up and indeed the contingency of the clean-up offer on Viacom being ordered to do anything at all by some government agency at some unspecified time. Additionally, the offer added a condition that Kennedy would not exercise its rights to petition the government agency in any way concerning government action affecting its own, property. Viacom demanded that Kennedy agree to a condition that certainly has not been granted by the judgment , in this case, nor could such a condition have been included as relief for any cause of action litigated herein. Viacom’s proposal did not function as an offer of settlement within the meaning of Minn. Stat. Ann. § 549.09 stopping the accrual of interest. Cf. Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 841 (Minn.1988) (offer that did not encompass all claims in suit did not stop interest). Obviously, the award of interest on the strict liability award must be vacated, but the, interest on the CERCLA and MERLA award should be affirmed. V. We reverse the judgment in favor of Kennedy for strict liability and punitive damages, reverse and remand the award of injunctive relief with instructions to modify the injunction in accordance with this opinion, remand the award of attorneys’ fees for segregation and disallowance of those hours expended in furtherance of the MERA claim, affirm so much of the interest award as pertains .to the CERC-LA and MERLA claims, and reverse that part of the interest award that pertains to the strict liability damages. We remand for further proceedings consistent with this opinion. . We cite Rosenblatt with caution because it is clear that Maryland law is more restrictive of the strict liability tort than Minnesota law. Maryland has declined to extend strict liability to a case in which the defendant was a contractor that did not own the land on which it created a hazard. Rosenblatt, 642 A.2d at 187. Minnesota applied the Rylands doctrine to a contractor, rather than landowner, in the first case in which it adopted the doctrine. Cahill, 18 Minn. 324, 1872 WL 3309, at *5. . The trial court in Williams also concluded that jurisdiction was barred by a provision of CERCLA that precludes jurisdiction over challenges to administrative clean-up orders, 42 U.S. C. § 9613(h). 597 N.W.2d at 343; see also Werlein v. United States, 746 F.Supp. 887, 894, 897 (D.Minn.1990) (no jurisdiction over MERA claims regarding site subject to ongoing administrative clean-up), vacated in pan on other grounds, 793 F.Supp. 898 (D.Minn.1992). The Minnesota Court of Appeals concluded that § 9613(h) did not bar jurisdiction over state court proceedings based on state law. Williams, 597 N.W.2d at 344. The court’s conclusion was bolstered by the fact that § 9613(h) specifically excludes from its jurisdictional bar federal suits alleging state claims in which jurisdiction is predicated on diversity of citizenship. Id. Viacom removed this case to federal court on the ground of diversity of citizenship.

Selkirk Conservation Alliance v. Forsgren

TALLMAN, Circuit Judge. The issue in this case is whether federal agencies adequately followed our environmental laws both procedurally and substantively in approving a road-building project for Stimson Lumber Company (“Stimson”). Stimson sought an easement in order to access its land surrounded by the Colville National Forest. This forest is home to several threatened or endangered species. Once Stimson has access to its land, it will manage it for perpetual logging. The United States Forest Service (“Forest Service”), in granting the easement to Stimson, was required to complete an Environmental Impact Statement (“EIS”). The Forest Service and the United States Fish and Wildlife Service (“Fish & Wildlife”) had to ensure that granting the easement would not jeopardize the continued existence of any animal species. Both the EIS and the no-jeopardy determination demanded that the Forest Service and Fish & Wildlife contemplate the “cumulative impacts” of the easement on the land and animals in the area. Selkirk Conservation Alliance and other environmental groups (“Selkirk”) contend that the decision to grant the easement was arbitrary and capricious because the agencies failed to consider cumulative impacts and that Fish & Wildlife did not rely on the best information available in determining the likely harm to species. The district court granted summary judgment in favor of Stimson, the Forest Service, and Fish & Wildlife, and dismissed the claims brought by Selkirk challenging the project. We affirm. I A Stimson owns six parcels of land in the LeClerc Creek watershed in northeast Washington State within the Colville National Forest (“Colville”), approximately 2,240 acres in total. Such parcels of land are called “inholdings.” Five of these parcels are entirely surrounded by -Colville land, and the only reasonable access route to the sixth parcel is over the Colville land. For this reason, Stimson’s predecessor-in-interest, Plum Creek Timber Company, asked the Forest Service to provide access to the inholdings. The Forest Service responded by proposing to grant an easement across Colville land (the “Stimson Project”). The Forest Service authorized construction of 1.88 miles of new road and reconstruction of 0.81 miles of old road on Forest Service land within the Colville. Once the Stimson Project is completed, Stimson plans to build at least 15.4 miles of inhold-ing road and harvest 1,577 acres on Stimson’s privately owned forest lands accessed by the easement. The land to be accessed by the Stimson Project lies within the Selkirk Mountains. The Selkirk Mountains straddle the Washington-Idaho border and extend north into the Canadian Rockies. This area hosts approximately 50 grizzly bears and contains about 6 percent of the grizzly-bear-occupied range in the continental United States. In an attempt to monitor and support this grizzly bear population, the Selkirk Mountains are divided into ten Bear Management Units (“BMUs”). The LeClerc BMU is one of these areas. The Interagency Grizzly Bear Committee, which demarked the bear management units, considered that each unit would provide an appropriate area in which to monitor and analyze the bears. The entire Stimson Project and the lands it will reach fall within the LeClerc BMU. In connection with the Stimson Project, the Forest Service sought formal consultation with Fish & Wildlife in 1993. Fish & Wildlife evaluated the Stimson Project’s impact on threatened or endangered species and created a draft biological opinion in 1994 that found the easements would place some species in jeopardy. The draft opinion stated that “the proposed action will jeopardize the grizzly bear by increasing the potential for direct mortality to grizzly bears due to increased human use of roads and the increased visual access provided by these roads.” The biological opinion was then put on hold while the Forest Service, Fish & Wildlife, and Stimson’s predecessor-in-interest negotiated a multi-party Conservation Agreement intended to mitigate the effects of the Stimson Project. Stimson and the agencies signed a final Conservation Agreement on January 17,1997. B • The 1997 Conservation Agreement dictated the terms by which Stimson would manage all of its lands in the LeClerc BMU, not just those lands to be accessed by the Stimson Project. According to Fish & Wildlife, the Agreement “spells out a cooperative management plan to minimize effects to the grizzly bear in the LeClerc BMU.” In particular, the Agreement aims to “minimize displacement of grizzly bears from spring range, to maintain functional female grizzly bear home range in the BMU, and to reduce the potential for human-caused mortality.” To those ends, the Agreement imposed dozens of requirements on Stimson’s management of its lands in the LeClerc BMU. Stimson agreed to restrict all activities, including harvesting and road building, in spring range areas when bears are out of their dens. That is, Stimson could only harvest those areas when bears are den-ning in the winter. The Agreement also restricted Stimson’s ability to build roads on its privately owned lands, prohibited net gains in open-road densities, and mandated that road construction maintain “visual screening” (e.g., trees) into bear habitat. The Agreement required Stimson to maintain 40 percent “cover” (areas of prime bear habitat) in the LeClerc BMU and provided that all harvest units “be layed [sic] out so that no point in the unit is more than 600 feet from cover.” Finally, the Agreement created an extensive monitoring system. Stimson agreed to monitor “road densities, levels of vehicular use, and seclusion habitat.” Stimson and the agencies agreed that the “monitoring results and the Agreement guidelines will be reviewed by the Parties annually ... and the guidelines will be appropriately revised.” Fish & Wildlife issued a biological opinion on June 20, 1997. Relying heavily on the mitigating effects of the Conservation Agreement in evaluating the Stimson Project’s impact on habitat, the opinion concluded that the Stimson Project would not jeopardize any of the threatened or endangered species in the area. Fish & Wildlife stated that the Agreement mitigated the concerns about the grizzly bears “in several ways: Open road densities will be limited .... there will be no net increase in total road densities, and no net decrease in core [e.g., prime bear habitat] ...” and “[i]mplementation of [the Agreement’s provisions] together will add approximately 6,962 acres of grizzly bear habitat with low levels of motor vehicle access, and provide a large block of available spring habitat.” The biological opinion concluded that: The proposed project ... is not likely to result in jeopardy to the species [grizzly bears] because: Implementation of the guidelines in the Agreement should improve grizzly bear occupancy in spring range, especially in and near the Winter Logging Areas; the Agreement results in loss of a large block of core habitat, however measures are provided to improve seasonal secure areas for the grizzly bears, and to minimize motor vehicle use on restricted roads; monitoring will be conducted.... Thus, Fish & Wildlife believed that the Stimson Project, assuming a fully implemented Conservation Agreement, would not place any species in jeopardy. In commenting on this opinion, the Forest Service questioned whether the Conservation Agreement’s lowering of bear mortality risk, which focuses mostly on restrictions to spring habitat, would affect bear mortalities in the critical fall season when hunters abound. Despite this skepticism about the ability of the Conservation Agreement’s mitigation measures to lower bear mortality, the Forest Service issued a Finding of No Significant Impact, meaning that the Forest Service would not study the issue further or prepare an EIS. That Finding was appealed administratively and reversed. The Forest Service thereafter developed a Draft EIS. C Stimson, the Forest Service, and Fish & Wildlife entered into a revised Conservation Agreement on February 1, 2000. As revised, the Agreement creates an ecosystem-based management plan throughout the LeClerc BMU. The 2000 Agreement has many of the same features as the 1997 Agreement. In particular, the Agreement requires Stimson to manage the timber to guarantee tree “cover” for bears every 600 feet, to prevent a net increase in open roads, to limit Stimson’s use of Stimson’s private roads during the spring, and restricts Stimson’s operation of winter logging areas during the times the bears are not in their dens. D The Forest Service issued a Final EIS for the Stimson Project in September 2000. The EIS identified six alternatives. For each alternative considered, the EIS evaluated the direct, indirect, and cumulative impacts of the Stimson Project on the following resources (among others): un-roaded areas, old-growth vegetation, soil, water quality, fisheries, caribou, grizzly bear, lynx, bull trout, plant life, road access, range, recreation, fire, and heritage and historic resources. With respect to the geographic scope of the EIS, the Forest Service evaluated cumulative effects by focusing on species-management geographic units. For the grizzly bears, the EIS examined the cumulative effects of the Stimson Project in the context of the LeClerc BMU. The Forest Service limited the geographic scope of the EIS to the LeClerc BMU, despite a separate Stimson request for access to Stimson lands in the nearby Idaho Panhandle National Forest (“IPNF”). The lands that Stimson will access in the IPNF are just across a ridge-line from the lands that Stimson will access in the LeClerc BMU. Nonetheless, the Forest Service concluded that the IPNF request would not generally affect the cumulative-effects analysis for the Stimson Project in the LeClerc BMU, although the Forest Service did include the IPNF project in its analysis of the cumulative effects on roadless areas. The Forest Service cautioned that expanding the study area for the Stimson Project EIS to consider the IPNF project would skew the analysis of the Stimson Project by improperly spreading out the impact on a larger area. The Forest Service constrained the geographic scope of the EIS even though it had previously acknowledged that “[m]ost radioed female bears within the Selkirk ecosystem do utilize portions of more than one BMU.” That is, bears do not observe the BMU demarcations, but instead wander across BMUs. The Forest Service reasoned that “[t]his does not, however, negate the value of a BMU for cumulative effects analysis.” The Forest Service maintained the LeClerc BMU as the geographic boundary because BMU “delineation objectives were to include areas with all bear seasonal habitat components and to be large enough to encompass the home range of a female grizzly bear.” The Forest Service, again, was generally concerned that evaluating “cumulative effects on too large of an area can dilute the effects of a proposed activity.” With regard to the specific Stimson projects in the IPNF, the Forest Service concluded that they would not have a cumulative impact because “[t]he two Stimson proposals [Le-Clerc and IPNF] would not result in a connected transportation system and lie within separate watersheds [and] viewsheds.... The ridgeline separates the watersheds, causing hydrological effects to be separate; it also separates the viewsheds, and serves as a boundary line for analysis of wildlife effects.” The EIS did not reference or discuss the impact of several specific Stimson harvests that were to take place inside the LeClerc BMU, although not on land that would be made accessible by the easements granted by the Forest Service. The Forest Service, instead, analyzed the effect of Stimson’s lumber harvest by evaluating the impact of the Conservation Agreement. The Conservation Agreement governs Stimson’s behavior on all of its lands within the LeClerc BMU. When the Forest Service analyzed the effects of the Conservation Agreement, the Forest Service presumed that Stimson would manage all of its lands for perpetual logging. Because the Conservation Agreement universally dictates Stimson’s harvesting activity in the LeClerc BMU, and the EIS assumed Stimson would harvest all of its lands, the Forest Service considered evaluation of the Conservation Agreement to be the primary method of analyzing the cumulative impacts of future Stimson activities. The Forest Service also limited the temporal scope of the EIS. The Forest Service projected the effects of Stimson’s actions for only three years. This time frame was chosen, even though Timothy Bertram — a Forest Service scientist — initially projected the impact of Stimson’s activities over a period of ten years, using average historical levels of harvest. Bertram chose this long-term forecast because “it was apparent that there would be activity beyond the three-year period.” Also, the three-year window was selected in spite of the Conservation Agreement’s five-year term. According to Bertram, the EIS ultimately evaluated the effects for three years because the EIS “was based upon the information we were provided by Stimson, which only provided specific information through the year 2003,” despite the five-year term of the Conservation Agreement. E Fish & Wildlife issued a final biological opinion on May 17, 2001. This biological opinion evaluated the impact of the Stimson Project on the threatened and endangered species in the area and concluded that the Stimson Project will not jeopardize these species. The biological opinion conceded that introducing more roads into the LeClerc BMU and facilitating more logging will adversely affect grizzly bears. But the opinion considered the effect of the Conservation Agreement and concluded that, with the Agreement in place, the overall effect of the Stimson Project will not jeopardize the grizzly bears. The biological opinion concluded that the Agreement sufficiently mitigates the Stimson Project’s effects on the bears, even though biological assessments performed by the Forest Service indicated that the Agreement does not eliminate some of the primary causes of bear mortality and environmental degradation. For example, Fish & Wildlife relied heavily on the Agreement’s restrictions of net gains in “open” roads (those roads open to public use). However, the Agreement does not prevent a net gain in “closed” or private-use roads on Stimson lands, but instead places restrictions on when, where, and how they can be built, maintained, and used. The Forest Service had previously concluded that “closed” roads can be as harmful to bears as “open” roads because it is difficult to keep public motorists, snowmobilers, hunters, and hikers off of “closed” roads. The Forest Service also expressed concerns about the efficacy of restrictions on Stimson’s administrative use of closed roads. The Agreement restricts Stimson’s access to its “closed” roads from April 1 — June 15 so as not to interfere with the critical post-denning period. But Forest Service biologists were concerned that the post-denning period often runs into July, when Stimson is free to use its “closed” roads as it chooses. Aside from the Forest Service’s concerns about the road restrictions, the Forest Service raised questions about the restrictions on when Stimson may harvest trees. The Agreement prohibits Stimson from logging certain areas during the post-denning period. For the same reasons the Forest Service was concerned that spring road restrictions might be inadequate — the bears often extend their post-denning period into July — the Forest Service commented that these harvesting restrictions are “not likely to adequately minimize displacement of grizzly bears during the critical post den emergence period.” Fish & Wildlife scientists shared many of the concerns expressed by their colleagues at the Forest Service. Fish & Wildlife acknowledged that closed roads are bad for bears, and that the Agreement allows the proliferation of closed roads and does not fully restrict Stimson’s use of those roads. Fish & Wildlife also noted that the Agreement will not maintain current amounts of “core” areas. In addition, the Stimson Project will result in several thousand acres of logging, further displacing grizzly bears. Despite all of these concerns, Fish & Wildlife concluded that— although the Stimson Project may adversely affect the grizzlies' — it will. not jeopardize their existence. Again, Fish & Wildlife relied on the Conservation Agreement in reaching this conclusion. Fish & Wildlife noted in the 2001 biological opinion (much as it had in its 1997 opinion) that the Agreement would restrict the impact on grizzly bears because: “Open road densities will be limited”; Stimson will be confined to limited use of its closed roads during the post-denning period; “Stimson will avoid commercial use in 4,480 acres of ‘winter logging areas,’ ” thereby “secur[ing] low elevation % spring habitat”; the Agreement “will add approximately 6,962 acres of available spring habitat”; “40 percent minimum cover[will be] maintained within the BMU”; “no point in [a harvest] unit is more than 600 feet from cover”; and Stimson and the Forest Service will monitor the efficacy of the Agreement. Although the Forest Service and Fish & Wildlife doubted that the Agreement alleviated every negative effect the Stimson Project would have on the grizzly bear, the agencies concluded that the Agreement sufficiently lowered the overall effects of the Stimson Project. Due to these safeguards, Fish & Wildlife concluded that the Stimson Project “is not likely to jeopardize the continued existence of the grizzly bear.” F Selkirk filed this action on October 12, 2001, in the District of Oregon, arguing that the Forest Service and Fish & Wildlife violated the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (“NEPA”), and the Endangered Species Act, 16 U.S.C. § 1536 (“ESA”). Selkirk argued that the Forest Service violated these laws by failing to consider the cumulative impacts of the Stimson Project. Selkirk contended that Fish & Wildlife also violated ESA by not evaluating the cumulative impacts of the project, and by not basing the biological opinion on “the best scientific and commercial data available.” The parties filed cross-motions for summary judgment on April 22, 2002. The district court denied Selkirk’s summary judgment motion, granted the defendants’ summary judgment motions, and dismissed the case on June 17, 2002. Selkirk filed a notice of appeal on June 25, 2002. We have jurisdiction pursuant to 28 U.S.C. § 1291. II We review de novo the district court’s grant of summary judgment. See Hall v. Norton, 266 F.3d 969, 975 (9th Cir.2001). The Administrative Procedure Act governs our review of agency decisions under NEPA and ESA. It mandates that an agency decision may be overturned only where it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Within this narrow review, we cannot substitute our judgment for that of the Forest Service and Fish & Wildlife, but instead must uphold the agency decisions so long as the agencies have “considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Washington Crab Producers, Inc. v. Mosbacher, 924 F.2d 1438, 1441 (9th Cir.1990) (quotation marks and citation omitted). Selkirk argues that the agencies violated federal environmental laws in five different ways: 1) both agencies violated ESA by relying on the Conservation Agreement to mitigate the effects of the Stimson Project; 2) the Forest Service violated NEPA by not considering a wide enough geographic area in its cumulative effects analysis in the EIS; 3) the Forest Service violated NEPA by not considering reasonably foreseeable Stimson activities in its cumulative effects analysis in the EIS; 4) the Forest Service violated NEPA by employing too short of a time frame for the EIS analysis; and 5) Fish & Wildlife violated ESA by not considering reasonably foreseeable Stimson activities in the 2001 biological opinion. A Because the terms of the Conservation Agreement are central to the agencies’ decisions, we start by considering Selkirk’s challenge to the agencies’ evaluation of and reliance on the Agreement. Selkirk argues that the Forest Service and Fish & Wildlife violated ESA by relying on the Conservation Agreement to reduce the risks the Stimson Project poses to grizzly bears. Selkirk reasons that relying on the Conservation Agreement violated ESA’s requirement that the biological opinion and the agency action be based on “the best scientific and commercial data available.” 16 U.S.C. § 1536(a)(2). The “best scientific and commercial data” requirement prevents the haphazard implementation, “on the basis of speculation or surmise,” of ESA. Bennett v. Spear, 520 U.S. 154, 176, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Selkirk argues that the best available science contradicts the conclusion that the measures contained in the Conservation Agreement sufficiently mitigate the harm caused to the bears by the road-building project. Selkirk contends that it was arbitrary and capricious to rely on the Conservation Agreement to remedy concerns raised in the 1994 determination that the Stimson Project (as it then existed) would jeopardize grizzly bears. Disputes involving “primarily issues of fact” must be resolved in favor of the expert agency so long as the agency’s decision is based on a reasoned evaluation of the relevant factors. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377-78, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Particularly when the analysis “requires a high level of technical expertise,” this Court “must defer to the informed ( discretion of the responsible federal agencies.” Id. at 377, 109 S.Ct. 1851 (quotation marks and citation omitted). As Selkirk concedes in its brief, the agencies’ treatment of the Conservation Agreement may only be subverted by this Court if the Forest Service and Fish & Wildlife acted arbitrarily and capriciously. 5 U.S.C. § 706(2)(A). We first address whether it was proper for the agencies to rely on the mitigation measures contained in the Conservation Agreement. We will then turn to the particular dispute over whether these mitigation measures, in light of the best scientific data available, sufficiently reduce the harm posed to grizzly bears by the Stimson Project. As recounted by Fish & Wildlife, “[t]he Agreement spells out a strategy to cooperate and coordinate in management for grizzly bears.” After realizing that the proposed action would jeopardize the existence of sensitive species, Stimson’s predecessor-in-interest, the Forest Service, and Fish & Wildlife began a series of meetings designed to lower the risks the project posed for grizzly bears. After a year of consultation, the parties designed an outline of “measures to minimize effects” and sent the outline to grizzly bear researchers for commentary. After another year of discussions, Stimson, the Forest Service, and Fish & Wildlife entered into the 1997 Conservation Agreement that contained a variety of mitigation measures, set forth above. In assessing the significance of the Agreement, we note that Stimson owns thousands of acres of land within the Le-Clerc BMU, only a fraction of which will be accessed by the Stimson Project. But the Agreement establishes standards of timber management that Stimson must follow on all of its LeClerc lands, not just those lands to be accessed by the Stimson Project. Absent the Agreement, Stimson would be free to harvest timber and build roads on its LeClerc holdings in whatever manner Stimson chose, so long as Stimson complied with state and federal timber regulations. The Agreement thus imposes obligations on Stimson that go far beyond state and federal laws. Even though the concept of a cooperative Conservation Agreement is attractive, and ought to be encouraged, federal agencies cannot delegate the protection of the environment to public-private accords. Even given the cooperation of private entities, the agencies must vigilantly and independently enforce environmental laws. In this ease, that means that the Forest Service and Fish & Wildlife were still required to make their agency decisions based on “the best scientific and commercial data available.” 16 U.S.C. § 1536(a)(2). We have previously held that an agency may fulfill its duties under our environmental laws even 'if the agency relies on private mitigation' promises when making environmental assessments. In Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976 (9th Cir.1985), a private real estate developer sought to build thousands of residential units and millions of square feet of commercial space on San Bruno Mountain, an area that was inhabited by a type of butterfly that is an endangered species. Id. at 979. The developer, along with local, state, and county officials, created a “Habitat Conservation Plan” to preserve the butterfly. Id. at 980. The Plan restricted how much land could be developed, dedicated land to butterfly habitat, created a permanent habitat conservation and enhancement program, and promised future cooperation among the parties. Id. at 987. Fish & Wildlife then issued a biological opinion. Id. at 980. The opinion concluded that the development, with the Plan’s restrictions in place, would not jeopardize the butterfly. Id. at 980-81. Fish & Wildlife also issued a Finding of No Significant Impact, which obviated the need to complete a full EIS. Id. at 981. The plaintiff contested the biological opinion and challenged the decision not to complete a full EIS. We rejected these challenges and approved Fish & Wildlife’s methodology. In doing so,' we rejected the plaintiffs argument that Fish & Wildlife failed to use “the best scientific and commercial data available” when it relied on the Plan in reaching its no-jeopardy determination. Id. at 984-85. We also held that Fish & Wildlife properly relied on the Plan when deciding not to draft a full EIS. Id. at 987. We noted that “courts have permitted the effect of mitigation measures to be considered in determining whether preparation of an[EIS] is necessary.” Id. More recently, we approved of agency reliance on mitigation measures in Edwardsen v. Department of Interior, 268 F.3d 781 (9th Cir.2001). In Edwardsen, the plaintiffs challenged an EIS that approved a plan to drill for oil off of the Alaska coast. Id. at 783. In particular, the plaintiffs argued that the EIS failed to adequately discuss the impact of vegetation loss on caribou. Id. at 789-90. We rejected the plaintiffs’ arguments, stating that: The EIS adequately addresses the effect of pipeline construction on the movement of caribou by noting that pipelines will be elevated to permit the passage of caribou and that the construction of permanent roads along pipelines will be minimized. These mitigation measures make reasonable the EIS’ conclusion that the cumulative effects of the pipelines on caribou would be minor. Id. at 790. These prior holdings are sensible. If a Conservation Agreement is in place, then the reviewing agencies ought to consider it when evaluating the impact of the proposed action. It is also relevant to know that the Agreement imposes enforceable obligations on the parties, to assure that the proposed mitigation measures will actually be implemented. Accordingly, it was proper for the Forest Service and Fish & Wildlife to consider the Conservation Agreement when evaluating the Stimson Project. Selkirk’s challenge goes beyond the threshold issue of whether it was appropriate to consider the Conservation Agreement at all. Selkirk also contends that Fish & Wildlife and the Forest Service failed in their duties when they concluded that the Conservation Agreement alleviates the concerns raised in the 1994 draft biological opinion that concluded the Stimson Project jeopardized the grizzly bears. Selkirk’s argument is not frivolous. After all, both Fish & Wildlife and the Forest Service identified serious problems posed by the Stimson Project. These included the devastating effects that roads have on grizzly bear survival and the disruptions caused by harvesting timber in grizzly bear habitat. We hold that Fish & Wildlife and the Forest Service did not violate their duty to rely on the best scientific data available when they reasonably concluded that the effects of road construction and timber harvesting would be sufficiently mitigated by enforcement of the terms in the Conservation Agreement so as not to jeopardize the existence of the species. While another decisionmaker might have reached a contrary result, the agencies conducted a reasonable evaluation of the relevant information and reached a conclusion that, although disputable, was not “arbitrary and capricious.” See Marsh, 490 U.S. at 385, 109 S.Ct. 1851. In the EIS, the Forest Service recognized the factors contributing to grizzly bear mortality, as identified by undisputed science, and considered at great length the impact of the Conservation Agreement on the primary threats to the grizzly bear. In the portion of the EIS evaluating “Private Land Actions,” the EIS concluded that the Conservation Agreement would “minimize displacement of grizzly bears” and “reduce the possibility of incidental take and not jeopardize the continued existence of listed species.” Of the alternatives considered in the EIS, the Forest Service noted that the alternative employing the Conservation Agreement “adds more management direction for Stimson lands.” The “[m]anagement direction from the [Conservation Agreement] for protection of habitat for grizzly bear includes: open road densities, operations and uses, road locations, cover, riparian zones, and security.” Later in the EIS, in the section titled “Effects of Actions Likely to Occur on Stimson Lands As a Result of Granting Access,” the Forest Service assumed that future Stimson activity would also be regulated by the Conservation Agreement. This section concluded that “[i]n addition to the cover objectives, ... benefit would be gained on Stimson lands by providing Winter Logging Areas only and restricting activities during the Spring Period.” In conducting its own grizzly bear analysis, Fish & Wildlife also identified and considered at length the primary causes of grizzly bear mortality in its section on grizzly bear status. Fish & Wildlife considered the efficacy of the Conservation Agreement in mitigating those threats to grizzly bears. Regarding the issue of road restrictions, Fish & Wildlife determined that under the Conservation Agreement, “[o]pen road densities will be limited[,] ... [n]ewly constructed roads will be closed to public motorized access,” and that “Stimson and [the Forest Service] will limit access on several restricted roads ....” As for the winter logging restrictions, Fish & Wildlife determined that “Stimson will avoid commercial use in 4,480 acres of ‘winter logging. areas,’ ” which will “provide a large block of available spring habitat” that “is- a benefit to the grizzly bear.” While Selkirk may advocate additional restrictions on Stimson’s activities, Fish & Wildlife provided the requisite' rational connection between the best available science identifying threats to the grizzly bear population and its decision that the Conservation Agreement sufficiently mitigated those threats: “[The Agreement] will help decrease adverse effects to the grizzly bear by providing space and isolation ... limiting activities especially during the spring season ... limiting road use, and by monitoring to ensure effectiveness.” See also Pac. Coast Fed’n of Fishermen’s Ass’ns v. Nat’l Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir.2001) (“Essentially, we must ask whether the agency considered the relevant factors and articulated a rational connection between the facts found and the choice made.”) (quotation marks and citation omitted). The conclusion of Fish & Wildlife and the Forest Service that the Conservation Agreement would not wipe out all effects of the Stimson Project does not, on its own, allow us to overturn the decision to grant the easement. The agencies performed a credible task: they identified the most troublesome problems (roads and harvesting in sensitive areas), realized the magnitude of those problems, and then determined that mitigation measures contained in the Conservation Agreement would lower the threats to the grizzlies enough that the Stimson Project would not place the existence of the species in jeopardy. While Selkirk advances a contradictory conclusion, we cannot say that the agencies’ evaluations of the Conservation Agreement, and their overall decisions, were not based on “the best scientific and commercial data available.” See also Greenpeace Action v. Franklin, 14 F.3d 1324, 1333 (9th Cir.1992) (“To set aside the Service’s determination in this case would require us to decide that the views of Greenpeace’s experts have more merit than those of the Service’s experts, a position we are unqualified to take.”). B We next consider Selkirk’s argument that the Forest Service violated NEPA. NEPA requires federal agencies to prepare an EIS for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(c). Every EIS must consider the cumulative impacts of the actions evaluated. 40 C.F.R. § 1508.25(a)(2). Federal regulations define “cumulative impact” as the “incremental impact of [an] action when added to other past, present, and reasonably foreseeable future actions regardless of what agency ... or person undertakes such other actions.” Id. § 1508.7. “We review an EIS under a rule of reason to determine whether it contains a ‘reasonably thorough discussion of probable environmental consequences.’ ” Edwardsen, 268 F.3d at 784-85 (quoting Neighbors of Cuddy Mountain v. United States Forest Serv., 137 F.3d 1372, 1376 (9th Cir.1998)). “In our review, we must not substitute our judgment for that of the agency.” Id. at 785. 1 Selkirk argues that the Forest Service violated NEPA by impermissibly constraining the geographic scope of the EIS. Selkirk contends that the Forest Service acted arbitrarily and capriciously by not fully considering the cumulative impact of a project proposed by Stimson in the IPNF, which borders the LeClerc BMU. The task of selecting the geographic boundaries of an EIS requires a complicated analysis of several factors, such as the scope of the project considered, the features of the land, and the types of species in the area. “[Determination of the extent and effect of these factors, and particularly identification of the geographic area within which they may occur, is a task assigned to the special competency of the appropriate agencies.” Kleppe v. Sierra Club, 427 U.S. 390, 414, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). Despite this deference given to the Forest Service, the agency must at least have considered cumulative effects in creating the boundaries of its analysis. “Federal regulations do not explicitly require an EIS to include a discussion of cumulative impacts, but they do direct agencies to consider cumulative impacts in determining the scope of an EIS.” Kern v. Bureau of Land Management, 284 F.3d 1062, 1076 (9th Cir.2002) (internal quotation marks and citations omitted). The Forest Service considered the IPNF project, determined that it would not create “additional, cumulative effects,” and therefore did not include the IPNF in the EIS’s analysis area. In fact, the cumulative effects section of the EIS starts by contemplating what to do with the IPNF project. The EIS states that Because of topography there would be no additional, cumulative effects from the [IPNF] access proposal. The two Stimson access proposals would not result in a connected transportation system and lie within separate watersheds, viewsheds, and management areas for proposed, threatened and endangered species. The ridgeline separates the watersheds, causing hydrological effects to be separate; it also separates the viewsheds, and serves as a boundary line for analysis of wildlife effects. The transportation system of roads would not be connected by the two proposals. Furthermore, when the Forest Service was determining the scope of the EIS, a wildlife biologist expressed concern that including the IPNF project in the EIS would be an “arbitrary increase! ],” and that “the magnitude of the effects would actually appear to be less as they would be spread over a larger area.” These evaluations of the impact of the IPNF projects adequately discharge the Forest Service’s obligations under NEPA. Our analysis is supported by our recent decision in Neighbors of Cuddy Mountain v. Alexander, 308 F.3d 1059 (9th Cir.2002). In Neighbors, the plaintiffs challenged the EIS for a timber sale on the ground that the EIS only analyzed cumulative effects on a portion of the forest. The opinion reasoned that “under NEPA we defer to an agency’s determination of the scope of its cumulative effects review. Given our standard of review, we conclude that the Forest Service took the requisite ‘hard look’ at the environmental effects of the sale before approving it. That is all NEPA demands.” Id. (citations omitted). Like in Neighbors, the Forest Service in this case took a “hard look” at the activity in the IPNF and made a considered judgment that the EIS would be a more accurate document if it did not consider the IPNF activity in the EIS’s cumulative impacts analysis. Selkirk relies on two other cases recently decided by this Court. The first case is Native Ecosystems Council v. Dombeck, 304 F.3d 886 (9th Cir.2002), which also dealt with the choice of a Bear Management Unit as the sole area of analysis. Native Ecosystems held that the Forest Service violated ESA when it failed to consider the impact of a nearby sheep grazing operation when conducting its ESA cumulative effects analysis for a proposed timber sale in a national forest bordering Yellowstone National Park. The sheep grazing unit neighboring the proposed timber sale area was a known “population sink,” meaning that the Forest Service was aware that the grazing unit was an area in which “[t]he majority of known and probable deaths of [area] grizzlies are clustered.” Id. at 902. This “population sink” was a little more than a mile from the proposed timber sale, but was not considered by the Forest Service in its cumulative effects analysis because it was outside the Bear Management Subunit. Id. at 901-02. We stated that “the Management Subunit may well be a proper proxy for the project’s action area, but one cannot tell from the administrative record. An agency must provide support for its choice of analysis area and must show that it considered the relevant factors, and the Forest Service failed to do so here.” Id. at 902 (citation omitted). In Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957 (9th Cir.2002), the Forest Service chose the “home range” of various species to defíne the geographic scope of the EIS, despite a 1996 Forest Service report that mandated that “the habitat needs of these species must be evaluated at a landscape scale.” Id. at 973 (emphasis in original). We held that the Forest Service violated NEPA by confining the EIS to the smaller “home range” and not considering the entire “landscape scale” “without justifying its decision.” Id. at 974. Unlike Native Ecosystems and Idaho Sporting Congress, the Forest Service in this case did “provide support” for and “justify” its decision to exclude the IPNF area from the EIS analysis. The agency concluded that the IPNF activity implicated a different watershed with different topography, and that including the IPNF area in the analysis might have skewed the results. The EIS acknowledged the existence of the IPNF project and stated why the project should not be included in the EIS. “NEPA exists to ensure a process, not to ensure any [particular] result.” Inland Empire Public Lands Council v. United States Forest Serv., 88 F.3d 754, 758 (9th Cir.1996) (emphasis in original). The Forest Service followed an appropriate process. Selkirk argues that Native Ecosystems is similar to this case, despite the justification of the EIS’s geographic scope in this case that was missing in Native Eco systems. Selkirk contends that Native Ecosystems establishes that the Forest Service must account for how the Stimson Project affects the “wandering bear.” Stimson maintains that this accounting must go beyond the LeClerc BMU because, as the Forest Service acknowledges, bears move between BMUs. Although Native Ecosystems appears to be factually similar to this case, upon closer examination there are some significant differences. In Native Ecosystems, the Forest Service did not analyze the impact of a sheep grazing unit; this unit was acknowledged as a center for bear deaths. In this case, Selkirk objects to the Forest Service’s decision not to evaluate the effects of Stimson access requests in the IPNF. But there is no indication that the Stimson access request in the IPNF is a “population sink.” The activities “ignored” in this case and Native Ecosystems are substantially different. Even though the Forest Service recognizes that bears may wander out of the LeClerc BMU, wandering into the IPNF is not wandering into the kind of place where most area bears die, which was the situation in Native Ecosystems. It is also significant that the IPNF project into which bears may wander had not yet been approved when the EIS was drafted, while the sheep grazing “population sink” already existed in Native Ecosystems. The Forest Service need not always consider “all proposed actions in an appropriate region before approving any of the projects.” Kleppe, 427 U.S. at 414 n. 26, 96 S.Ct. 2718. Even with the acknowledgment that bears wander out of BMUs, the selection of the LeClerc BMU was not arbitrary and capricious. It would be absurd to think that grizzly bears in the wild confine themselves to a discrete area as if they were in a zoo. The Interagency Grizzly Bear Committee established the BMUs as the proper areas for grizzly bear analysis because the BMUs are the “approximate size of annual home ranges of an adult female grizzly bear.” This committee of experts was aware of the wandering nature of bears when they selected the BMUs for analysis areas, as shown by the committee’s statement that “[the analysis areas] are not intended to be the actual home ranges of known adult female grizzly bears.” It was not unreasonable for the Forest Service to limit its analysis to the BMU in which the Stimson Project would take place. The Forest Service is allowed to consider “practical considerations of feasibility” in its selection of a geographic scope for an EIS. Kleppe, 427 U.S. at 412, 96 S.Ct. 2718. Three articulable reasons supported the agency decision: (1) the selection of one BMU made sense based on the geographic features contained therein; (2) expanding the analysis area would dilute the effects of the proposed project; and (3) the bear’s likely wandering area was not a known “population sink” like that in Native Ecosystems. We cannot say the decision to limit the scope of analysis to the LeClerc BMU was unreasonable. 2 Selkirk next argues that the Forest Service violated NEPA by failing to consider the impact of several future Stimson projects in the LeClerc BMU. NEPA obligates the Forest Service to consider “past, present, and reasonably foreseeable future actions” in its cumulative effects analysis. 40 C.F.R. § 1508.7. NEPA requires that an EIS contain a “meaningful analysis of the cumulative impacts” for future projects. City of Carmel-By-The-Sea v. Dep’t of Transp., 123 F.3d 1142, 1161 (9th Cir.1997). Selkirk maintains that the EIS did not sufficiently describe, locate, or analyze seventeen road-building and logging projects identified by Stimson in state forest practices applications. We disagree. The EIS contains a section on “Effects of Actions Likely to Occur on Stimson Lands As a Result of Granting Access.” This section states that “[information on the activities planned on Stimson lands [includes] ... inventory forest type size class maps, color coded maps óf proposed 5-year harvest plans, [and] current State approved Forest Practices Applications in the [LeClerc BMU].... These documents are included in the analysis files for this EIS.” With specific regard to the grizzly bear habitat, the EIS considered “other harvest related activity within the” Le-Clerc BMU when analyzing the cumulative effects of the Stimson Project. The Forest Service included in the EIS’s administrative record most of the forest practices applications. The Forest Service requested and received from Stimson on April 26, 1999, “[c]opies of all currently active State approved Forest Practices Applications.” The Forest Service received additional applications on September 21, 1999, October 13, 1999, November 4, 1999, and March 8, 2000. In short, the Forest Service sought and received updated Washington State forest practices applications during the entire time it was drafting the EIS. Selkirk complains that the Forest Service did not list the location of all the harvest projects that Stimson had planned. The EIS detailed the locations of areas Stimson planned to harvest when the EIS was drafted, however, and this detail is part of a careful consideration of the effects of these harvests. The EIS contemplated that future Stimson harvests throughout the LeClerc BMU would result in the loss of more than 4,000 acres of core habitat. This analysis referred to a map of planned Stimson projects, which provided locations beyond those directly related to the easements considered by the EIS. The Conservation Agreement plays a significant role here, as well. To the extent that consideration of specific forest prac- ■ tices applications would duplicate the thorough consideration of the operational plan set forth in the Conservation Agreement, the Forest Service made a reasoned decision to exclude detailed descriptions of those applications. The EIS presumed that Stimson would manage all of its lands for perpetual logging, and the Agreement regulates Stimson’s behavior on all of these lands. As noted earlier, we place great emphasis on Stimson’s obligations to honor its word given in the Agreement. As long as Stimson’s behavior accords with the Agreement, the Forest Service’s thorough consideration of the effects of the Agreement reduces the need to list, map, and discuss every pending Stimson harvest plan. Given that the EIS listed and considered most pending forest practices applications and evaluated the effects of the Agreement, we conclude that the EIS provided a “ ‘reasonably thorough discussion of probable environmental consequences.’ ” Edwardsen, 268 F.3d at 784-85 (quoting Neighbors of Cuddy Mountain, 137 F.3d at 1376). 3 Selkirk’s final NEPA-based challenge is that the EIS used an inadequate temporal scope. NEPA requires that an EIS engage in reasonable forecasting. Because “ ‘speculation is ... implicit in NEPA, [ ] we must reject any attempt by agencies to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as “crystal ball inquiry.” ’ ” Kern, 284 F.3d at 1072 (quoting Scientists’ Inst. for Public Information, Inc. v. Atomic Energy Comm’n, 481 F.2d 1079, 1092 (D.C.Cir.1973)). Selkirk argues that the Forest Service violated NEPA by only considering the effects of the Stimson Project through 2003, a three-year period. The selection of the scope of an EIS is a delicate choice and one that should be entrusted to the expertise of the deciding agency. Cf. Kleppe, 427 U.S. at 414, 96 S.Ct. 2718. NEPA does not impose a requirement that the Forest Service analyze impacts for any particular length of time. In reviewing the EIS, we ask only whether the Forest Service “considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Washington Crab Producers, 924 F.2d at 1441 (quotation marks and citation omitted). Stimson, in its brief and at oral argument, advanced the only argument in defense of the three-year analysis period. Stimson argued that the Forest Service’s temporal decision was based on the constantly changing nature of the multitude of federal and state regulations applicable to Stimson’s activities. The Washington State forest management rules were instituted on an “emergency” basis while the EIS was being drafted. Permanent rules will replace them. The federal forest practices rules are also in a state of flux. The specific management guidelines for individual animal species are also evolving. For example, temporary rules were imposed in January 1999 for grizzly bear recovery area management, with a proviso that those rules will change when the “Selkirk/Cabineb-Yaak Grizzly Bear Subcommittee determines a need to modify this direction.” Stimson therefore argues that the Forest Service acted reasonably when it limited its analysis to the time period for which it was certain of the rules that would govern Stimson’s behavior. The problem with Stimson’s argument (and it was only Stimson’s; the government never articulated a defense of the three-year period) is that the Forest Service appears to have had two other choices for temporal analysis. The Forest Service could have analyzed the effects of the Stimson Project for a ten-year period. Indeed, this is the time period initially selected by the Forest Service’s wildlife biologist, who used historical harvest averages to project timber activity for ten years. The Forest Service also could have selected a five-year window. The Conservation Agreement, which governs much of Stimson’s behavior, runs for five years. Even if the Forest Service did not know exactly what Stimson was going to cut in years four and five, and even if the Forest Service did not know what forest practices rules would apply in years four and five, the Conservation Agreement gives a pretty good idea of what Stimson would be doing in those years and how it would do it. These problems with the three-year window make this an extremely close issue. But, in the end, we cannot say that the Forest Service acted arbitrarily and capriciously in selecting the three-year period. The regulations that are subject to change are critical to evaluating Stimson’s harvesting, and their change would affect analysis of that harvesting. The Washington State forest management rules govern the smallest details of harvesting. The EIS contains a list of “Assumptions Used for Activities on Stimson’s Lands Based on [Washington] DNR regulations.” These assumptions include such fine detail as: No harvest is permitted within the inner zone unless the basal area of conifer and hardwoods for trees greater than 6 inches dbh is: Greater than 130 or less than 90 square feet per acre on medium site indexes Harvest must leave at least 50 trees per acre AND a basal area of 90 square feet per acre on medium site indexes as follows: The 21 largest trees must be left. The remaining 29 trees must be greater than or equal to 10 inches dbh. At least 20 tons per acre of down wood present on the site before harvest must be left as follows: A minimum of 8 pieces greater than 16 inches diameter and 20 feet in length .... These regulations, and others equally detailed and important, were all imposed on a temporary basis and were set to expire after three years. The restrictions imposed on Stimson by state regulations are critical to understanding how Stimson’s harvest will affect the environment. For example, the regulations could change from requiring fifty trees per acre to remain to requiring only five trees; such a change would affect the Forest Service’s evaluation of the project. Not only was the Forest Service’s certainty of these vital regulations limited to three years, the EIS “was based upon the information ... provided by Stimson, which only provided specific information through the year 2003.” Although we do not mean to suggest that a private actor should be allowed to limit the reach of an EIS by providing only limited information about its intentions, it was significant that the Forest Service received concrete Stimson plans only for a three-year period. A ten-year study may have been preferable in this case. Or even a five-year study. But the three-year study chosen by the Forest Service was not unreasonable. Although the Forest Service had some information for ten years, and some more information for five years, it had the most information for the next three years. In this situation, the three-year period of analysis did not prevent the EIS from setting forth a “ ‘reasonably thorough discussion of the significant aspects of probable environmental consequences.’ ” Kern, 284 F.3d at 1071 (quoting Oregon Natural Resources Council v. Lowe, 109 F.3d 521, 526 (9th Cir.1997)). Moreover, any new information is required undér the Conservation Agreement to be analyzed and the Agreement revised, if necessary. The enforcement of this provision is particularly vital in light of the less-than-ideal three-year period of analysis in the EIS. C Finally, Selkirk argues that Fish & Wildlife violated ESA by not considering future Stimson activities in the 2001 biological opinion. ESA requires that the Forest Service “shall, in consultation with [Fish & Wildlife], insure that any action authorized, funded, or carried out by [the Forest Service] ... is not likely to jeopardize the continued existence of any endangered species or threatened species.” 16 U.S.C. § 1536(a)(2). Fish & Wildlife must review the information prepared by the Forest Service and author a biological opinion indicating whether the Forest Service action jeopardizes any species. 16 U.S.C. § 1536(b)(3)(A). Fish & Wildlife must “[e]valuate the effects of the action and cumulative effects on the listed species” when rendering the biological opinion. 50 C.F.R. § 402.14(g)(3). Selkirk contends that Fish & Wildlife did not adequately consider the cumulative effects of the Stimson Project because Fish & Wildlife’s biological opinion did not analyze the forest practices applications filed by Stimson. In addition, Selkirk argues that the failure to adequately assess forest practices applications for Stimson projects involving a total of 14.55 miles of new road and 4,462 acres of logging in the LeClerc BMU violates the requirement to use the best available commercial data. See 16 U.S.C. § 1536(a)(2). As in the other challenges raised by Selkirk, we evaluate Fish & Wildlife’s biological opinion to see if it was arbitrary and capricious. We defer to Fish & Wildlife’s no-jeopardy determination, especially where, “resolution of[the] dispute involves primarily issues of fact.” Marsh, 490 U.S. at 377, 109 S.Ct. 1851. Fish & Wildlife, may employ any method that adequately considers cumulative impacts. ESA does not impose a requirement that Fish & Wildlife list, detail, and discuss each and every forest practices application, so long as Fish & Wildlife employs a device, that considers the cumulative impacts of future Stimson activities. Here, Fish & Wildlife used the Conservation Agreement as such a device. Unlike the forest practices applications, which do not cover the bulk of harvests likely to occur on Stimson land, the Conservation Agreement governs Stimson’s behavior on all of its land in the LeClerc BMU. Consideration of the Conservation Agreement-mandated behaviors was therefore an evaluation of the best information as to Stimson’s future actions. Fish & Wildlife, however, was still required to evaluate the effects of the actions and cumulative effects on the listed species. Selkirk argues that Fish & Wildlife failed to provide any useful analysis of the Stimson Project’s impacts on grizzly bears. In making this assertion, Selkirk overlooks the extensive analysis devoted to the effects of the Conservation Agreement. Fish & Wildlife devoted nearly all of the biological opinion to addressing the impacts of the mitigation measures contained in the Conservation Agreement. The first page of the biological opinion states that the Conservation Agreement “is incorporated as part of the proposed action. It addresses measures necessary to minimize adverse impacts to bull trout, woodland caribou, and grizzly bear.” The biological opinion goes on to discuss the Conservation Agreement’s requirements related to bull trout, caribou, and, relevant to this case, grizzly bear (“open road density ... will not exceed one mi/ mi2 during the non-denning period,” “no net increase in roads open to public motorized use,” “provide more secure low elevation habitat,” “leave visual screening between roads,” “a minimum of 40% of all land in the BMU is maintained in cover,” “no point in the unit is more than 600 feet from cover,” “new information gained from monitoring and research, conducted either within or outside the BMU, will be reviewed on an annual or more frequent basis, as necessary, to determine if changes in management direction are appropriate”). Fish & Wildlife’s assessment of the Conservation Agreement drove the conclusions of the biological opinion. The biological opinion concluded that the “access project is not likely to jeopardize the continued existence of the grizzly bear” because of four requirements imposed by the Conservation Agreement: (1) no net increase in open road density, (2) winter logging areas and security areas “will result in more secure low elevation spring habitat than is presently available,” (3) adequate cover will be maintained, and (4) extensive monitoring will maintain the effectiveness of the Conservation Agreement. In choosing to analyze the impacts of Stimson’s planned actions through the Conservation Agreement, Fish & Wildlife adequately considered the environmental impact of future Stimson timber harvesting. Further, we cannot say that Fish & Wildlife did not use the best commercial data available. Stimson must conduct all its activities on its lands within the Le-Clerc BMU in accordance with the terms of the Conservation Agreement; the Conservation Agreement assumed that Stimson would use its lands for perpetual logging. Thus, even if Fish & Wildlife did not consider several specific forest practices applications, the Conservation Agreement governs Stimson’s relevant commercial activities, and it was not arbitrary and capricious for Fish & Wildlife to use the Agreement as the best commercial data available. Finally, we again note that the Conservation Agreement provides for revision based upon the accumulation of better data, both scientific and commercial, which will provide continuing assessment of the environmental context of Stimson’s actions. Ill Our environmental laws must balance the oft-competing statutory policies of environmental protection and private property rights. NEPA and ESA attempt to strike that balance by requiring federal agencies to follow rigorous procedures when taking action that will impact the environment. Here, the Forest Service and Fish & Wildlife adequately followed those procedures. For the reasons we have discussed, it was not unreasonable for the agencies to rely in part on the Conservation Agreement in conducting their biological and environmental assessments. Such an agreement, the product of a constructive public-private cooperation for the protection of the environment, can be an important source of relevant data and a guarantee of future behavior designed to mitigate adverse environmental impacts. In this case, we are persuaded that the Conservation Agreement qualifies as a reasonable source of data, and will be enforced to deliver on its promises of mitigation. The district court’s summary judgment against Selkirk is AFFIRMED. . By order entered on October 9, 2002, we affirmed the district court and vacated our temporary stay that had prevented Stimson from beginning roadwork to access its landlocked property within the National Forest. This opinion explains the rationale for that decision. . The project was officially called the "ANIL-CA Access Easement,” so named after the federal statute that mandates the Forest Service to provide private landowners with access to their property, 16 U.S.C. § 3210(a), but for purposes of clarity will be referred to here as the "Stimson Project.” . The parties dispute how many specific harvesting plans were not detailed in the EIS, but the EIS appears to have left out at least six specific harvesting proposals. . The biological opinion incorporated the provisions of the Conservation Agreement into the terms and conditions of the Incidental Take Section, thus making Stimson’s compli-anee with the Agreement mandatory if Stimson wishes to avoid liability for the unauthorized taking of endangered and threatened species. . No party to this appeal has suggested that the Conservation Agreement is not enforceable; indeed, they have all implicitly assumed Stimson is contractually and legally bound to implement the agreed mitigation measures and that the government agencies intend to enforce Stimson’s compliance. We fully expect that Stimson and the government agencies will fulfill their obligations; and Selkirk is undoubtedly committed to assuring that they do. . In addition to evaluating the effect of the Conservation Agreement on grizzly bears, the EIS considered the Conservation Agreement’s impact on woodland caribou, bull trout, stream protection, and future monitoring.

United States v. Deaton

Affirmed by published opinion. Judge MICHAEL wrote the opinion, in which Judge WILKINSON and Judge LUTTIG joined. OPINION MICHAEL, Circuit Judge: This is the second appeal by James and Rebecca Deaton, who were sued by the government under the Clean Water Act (sometimes, “the CWA” or “the Act”), 33 U.S.C. § 1251 et seq., for failing to obtain a permit from the U.S. Army Corps of Engineers (the Corps) before digging a ditch and depositing excavated dirt in wetlands on their property. The Corps asserts jurisdiction because the Deatons’ wetlands are adjacent to, and drain into, a roadside ditch whose waters eventually flow into the navigable Wicomico River and Chesapeake Bay. The Deatons’ main argument is that the Corps has no authority over the roadside ditch, and thus the agency cannot regulate their wetlands. First, we hold that Congress’s power under the Commerce Clause to protect navigable waters allows it to regulate the discharge of pollutants that flow into the ditch. Congress delegated part of this authority to the Corps in the Clean Water Act. The Corps, in turn, has promulgated a regulation, 33 C.F.R. § 328.3(a)(5), that extends CWA jurisdiction to tributaries of navigable waters. This regulation represents a reasonable interpretation of the CWA that is entitled to deference. The Corps interprets its regulation to cover the roadside ditch, and we also defer to that interpretation. Second, we hold that the district court did not err when it decided that the Corps used an appropriate indicator for wetland hydrology (prescribed by its Wetlands Delineation Manual) in designating parts of the Deatons’ property as wetlands. Finally, we affirm the district court’s remediation order, which requires the Deatons to fill in the ditch and restore their wetlands to their pre-violation condition. I. The Delmarva Peninsula separates the Chesapeake Bay from the Atlantic Ocean. Since 1989 the Deatons have owned an undeveloped, twelve-acre parcel of land located roughly in the center of the peninsula, near Parsonsburg in Wicomico County, Maryland. The parcel slopes gently downhill toward a county road, Morris Leonard Road. A drainage ditch runs alongside the road between the pavement and the Dea-tons’ property. The Deatons call the ditch the “Morris Leonard Road ditch,” while the Corps calls it the “John Adkins Prong of Perdue Creek.” We will call it the “roadside ditch.” The parties agree that surface water from the Deatons’ property drains into the roadside ditch. They disagree about how much water flows through the ditch, and how consistent the flow is, but they agree on the ditch’s course. Water from the roadside ditch takes a winding, thirty-two-mile path to the Chesapeake Bay. At the northwest edge of the Deatons’ property, the roadside ditch drains into a culvert under Morris Leonard Road. On the other side of the road, the culvert drains into another ditch, known as the John Adkins Prong of Per-due Creek. Perdue Creek flows into Beaverdam Creek, a natural watercourse with several dams and ponds. Beaverdam Creek is a direct tributary of the Wicomico River, which is navigable. Beaverdam Creek empties into the Wicomico River about eight miles from the Deatons’ property. About twenty-five river miles further downstream, the Wicomico River flows .into the Chesapeake Bay, a vast body of navigable water. The Deatons bought the twelve-acre parcel for the purpose of developing a small (five-lot) residential subdivision. There was a problem, however, because much of the property was poorly drained. In particular, there was a large, low, wet area in the middle where water stood in the winter months and after heavy rainfall. Because of the drainage problem, the Wi-comico County Health Department denied the Deatons’ application for a sewage disposal permit. The Deatons then decided to dig a drainage ditch across the property. A technician from the U.S. Soil Conservation Service (SCS) advised Mr. Dea-ton, however, that a large portion of the property contained nontidal wetlands and that he would need a permit from the Corps before undertaking any ditching work. In early 1990 the Deatons, without seeking a Corps permit, hired a contractor who dug a 1,100-foot ditch that crossed the areas of the property identified as wetlands by the SCS technician. The contractor piled the excavated dirt on either side of the ditch, a practice known as sidecasting. The Corps learned about the Deatons’ ditching project in July 1990 and promptly initiated regulatory action. The details are discussed in our prior opinion, United States v. Deaton, 209 F.3d 331, 333 (4th Cir.2000). In short, the Corps issued a stop-work order to the Deatons, warning them that their placement of fill material in a wetland violated § 404(a) of the Clean Water Act, 33 U.S.C. § 1344(a), and that no further work should be done without a permit. After a period of lengthy, but unsuccessful, negotiations with the Dea-tons, the government in 1995 filed a civil complaint alleging that the Deatons had violated the Clean Water Act by discharging fill material into regulated wetlands without a permit. The district court ultimately concluded in the first round that sidecasting did not constitute the discharge of a pollutant under the Act and granted summary judgment to the Dea-tons. We reversed, holding that “the Clean Water Act’s definition of discharge as ‘any addition of any pollutant to navigable waters’ encompasses sidecasting in a wetland.” Deaton, 209 F.3d at 337 (referring to 33 U.S.C. § 1362(12)). We remanded the case for further proceedings. Not long after our remand order, the Supreme Court decided Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) {SiWANCC}. SWANCC held that the Corps exceeded its statutory authority under § 404(a) of the Clean Water Act when it interpreted the Act (through 33 C.F.R. § 328.3(a)(3) and the Migratory Bird Rule, 51 Fed.Reg. 41,217 (1986)) to cover an isolated, intrastate gravel pit that was filled with water and used by migratory birds. Id. at 162-63, 174, 121 S.Ct. 675. Because SWANCC provides new guidance for analyzing the Corps’s jurisdiction under the Clean Water Act, the Deatons filed a motion on September 10, 2001, asking the district court to reconsider the issue of CWA jurisdiction in this case. The Dea-tons argued that under SWANCC the Clean Water Act cannot be read to extend Corps jurisdiction to their wetlands or the roadside ditch and that if the Act does extend that far, Congress exceeded its authority under the Commerce Clause, U.S. Const. Art. I, § 8, cl. 3. On January 29, 2002, the district court entered an order denying the motion to reconsider, holding (1) that the Deatons’ wetlands are adjacent to the roadside ditch, which is a tributary of navigable waters, (2) that “[bjecause there is a hydrologic connection between the Deaton wetlands and navigable waters,” SWANCC does not bar CWA jurisdiction, and (3) that protecting the Dea-tons’ wetlands is reasonably related to Congress’s authority under the Commerce Clause to protect navigable waters as channels of commerce. Five days later, on February 4, 2002, the district court entered a remediation order directing the Deatons to restore their property “to its pre-violation condition and elevation.” The Deatons appeal these orders. II. A. The Deatons’ appeal of the district court’s order denying their motion to reconsider Clean Water Act (or Corps) jurisdiction presents a question of law that we review de novo. See Meekins v. United Transp. Union, 946 F.2d 1054, 1057 (4th Cir.1991). We begin with the statutory and regulatory framework for Corps jurisdiction in this case. Section 404(a) of the Clean Water Act requires a permit issued by the Secretary of the Army, through the Corps of Engineers, for the discharge of fill material into “navigable waters.” 33 U.S.C. § 1344(a), (d). The Act defines “navigable waters” as “waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). The Corps’s jurisdictional regulations define “waters of the United States” to include, among others, (i) traditional navigable waters, that is, “waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce,” 33 C.F.R. § 328.3(a)(1), (ii) tributaries of covered waters, including traditional navigable waters, id. § 328.3(a)(5), and (iii) wetlands adjacent to covered waters, including tributaries, id. § 328.3(a)(7). The Corps asserts jurisdiction over the Deatons’ wetlands because they are adjacent to the roadside ditch, which is a tributary of the Wicomico River, a traditional navigable water. In United States v. Riverside Bayview Homes, 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), the Supreme Court upheld Corps regulations “requiring] permits for the discharge of fill material into wetlands adjacent to the ‘waters of the United States.’ ” Id. at 139, 106 S.Ct. 455. Several courts have held that SWANCC limited this holding to wetlands adjacent to traditional navigable waters. E.g., Rice v. Harken Exploration Co., 250 F.3d 264, 268-69 (5th Cir.2001); United States v. RGM Corp., 222 F.Supp.2d 780, 785-86 (E.D.Va.2002); United States v. Newdunn Assocs., 195 F.Supp.2d 751, 763, 767-68 (E.D.Va.2002), appeal pending sub nom. Treacy v. Newdunn Assocs., No. 02-1480(L) (4th Cir.); United States v. Rapanos, 190 F.Supp.2d 1011, 1015-16 (E.D.Mich.2002). The Deatons do not press for that limitation here. They argue instead that the roadside ditch is not covered by the Clean Water Act, which means that their wetlands are not adjacent to any covered water. As a result, the Deatons say, they did not need a permit to discharge fill material into their wetlands. It is undisputed that the Deatons’ wetlands are adjacent to the roadside ditch. Thus, if the ditch is covered, so are the wetlands. Our analysis, then, will focus on whether the Corps has jurisdiction over the roadside ditch. B. The Deatons first argue that the Corps’s tributaries regulation, which interprets the Clean Water Act to reach the roadside ditch, pushes the limits of Congressional authority under the Commerce Clause and thereby raises a serious constitutional question. According to the Deatons, Congress did not give a clear indication that it intended the Act to reach tributaries so far from navigable waters, and therefore we should avoid the question of whether regulation of the ditch is constitutional by holding that Congress did not authorize it under the Act. The Deatons argue in the alternative that even if Congress authorized the Corps’s regulation of the roadside ditch under the CWA, that authorization is invalid because it exceeds Congress’s power under the Commerce Clause. The Corps, of course, contends that its assertion of CWA jurisdiction over the roadside ditch through its tributaries regulation, 33 C.F.R. § 328.3(a)(5), represents a proper exercise of power granted to Congress by the Constitution and delegated to the Corps. For the reasons that follow, we hold that the CWA, as implemented by the Corps’s regulation, fits comfortably within Congress’s authority to regulate navigable waters. The regulation reflects the Corps’s interpretation of the CWA, and the Deatons’ arguments require us to undertake a somewhat complicated analysis. The Deatons begin their first argument by saying that the Corps’s regulation cannot survive the threshold analysis required by SWANCC: when “an administrative interpretation of a statute invokes the outer limits of Congress’ power,” the interpretation is not entitled to deference under Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), unless Congress gave “a clear indication that [it] intended that result.” SWANCC, 531 U.S. at 172, 121 S.Ct. 675 (citing Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. and Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988)). This requirement, the Court said, stems from a “prudential desire not to needlessly reach constitutional issues and [an] assumption that Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority.” Id. at 172-73, 121 S.Ct. 675. Moreover, “[t]his concern is heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power.” Id. at 173, 121 S.Ct. 675. “Thus, ‘where an otherwise acceptable construction of a statute would raise serious constitutional problems, [courts] will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.’” Id. at 173, 121 S.Ct. 675 (quoting DeBartolo, 485 U.S. at 575, 108 S.Ct. 1392). SWANCC and DeBartolo must be read in light of Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). See Williams v. Babbitt, 115 F.3d 657, 661-63 (9th Cir.1997) (comparing DeBarto-lo and Rust). In Rust the Supreme Court proceeded to decide the constitutionality of an agency’s regulations because, while the constitutional arguments against the regulations had “some force,” the arguments did not “raise the sort of grave and doubtful constitutional questions” that would require a clear indication from Congress that it intended to authorize the agency’s interpretation. Rust, 500 U.S. at 191, 111 S.Ct. 1759 (internal quotation marks and citation omitted). Thus, the Court said, it did not have to “invalidate the regulations in order to save the statute from unconstitutionality.” Id. In sum, when “we do not face the sort of serious constitutional questions ‘that would lead us to assume Congress did not intend to authorize [the regulation’s] issuance,’ ” we may decide the constitutional question and proceed to the Chevron analysis. Republican Nat’l Comm. v. Fed. Election Comm’n, 76 F.3d 400, 409 (D.C.Cir.1996) (quoting Rust, 500 U.S. at 191, 111 S.Ct. 1759). Our initial task is to determine whether the constitutional question — does the Commerce Clause give Congress authority over the roadside ditch — is serious enough to warrant rejection of the Corps’s regulation. The Commerce Clause of our Constitution grants Congress authority over three distinct spheres: “[1] the use of the channels of interstate commerce ... [2] the instrumentalities of interstate commerce, or persons or things in interstate commerce ... [and 3] those activities having a substantial relation to interstate commerce.” United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). The activities regulated under the third category must be “economic in nature.” United States v. Morrison, 529 U.S. 598, 613, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). See also GDF Realty Invs., Inc. v. Norton, 326 F.3d 622, 633-36 (5th Cir.2003). Congress enacted the Clean Water Act under “its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.” SWANCC, 531 U.S. at 172, 121 S.Ct. 675. See also id. at 168 n. 3, 121 S.Ct. 675. The power over navigable waters is an aspect of the authority to regulate the channels of interstate commerce. Gibbs v. Babbitt, 214 F.3d 483, 490-91 (4th Cir.2000) (including “navigable rivers, lakes, and canals” among the channels of commerce) (citation omitted); United States v. Ballinger, 312 F.3d 1264, 1269 (11th Cir.2002). Congress’s power over the channels of interstate commerce, unlike its power to regulate activities with a substantial relation to interstate commerce, reaches beyond the regulation of activities that are purely economic in nature. The power to regulate channels of interstate commerce allows Congress to make laws that protect the flow of commerce. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 257, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (upholding congressional power to bar racial discrimination in hotels because this discrimination had a “disruptive effect ... on commercial intercourse”); United States v. Darby, 312 U.S. 100, 114-15, 61 S.Ct. 451, 85 L.Ed. 609 (1941) (upholding congressional power to forbid interstate commerce in goods made by child labor because traffic in such goods encourages “competition ... injurious to the commerce”). Some of the power exercised by Congress in enacting the Clean Water Act is grounded in the authority to protect the flow of commerce in “navigable waters as channels or instrumentalities of interstate commerce.” United States v. Wilson, 133 F.3d 251, 256 (4th Cir.1997). See also United States v. Ashland Oil & Transp. Co., 504 F.2d 1317, 1325-26 (6th Cir.1974) (noting hazards to navigation posed by pollution). The Deatons argue that the power over navigable waters is limited to legislation aimed at protecting or encouraging navigation and the flow of commerce. However, the Supreme Court cases discussing congressional power over channels of interstate commerce make clear that this view is too narrow. Congressional power to regulate the use of commercial channels goes further: “the authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained.... ” Caminetti v. United States, 242 U.S. 470, 491, 37 S.Ct. 192, 61 L.Ed. 442 (1917) (quoted in Lopez, 514 U.S. at 558, 115 S.Ct. 1624). In Caminetti the Supreme Court held that the Mann Act, which barred the transport of “any woman or girl” in interstate channels for an “immoral purpose” was within congressional authority, even though the defendant’s conduct — transporting a woman across state lines to “be and become his mistress and concubine”— was entirely noncommercial. Id. at 483, 485, 37 S.Ct. 192; see also Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971) (acknowledging congressional power to regulate “the use of channels of interstate ... commerce which Congress deems are being misused”); Heart of Atlanta Motel, 379 U.S. at 256, 85 S.Ct. 348 (citing Caminetti); cf. Ballinger, 312 F.3d at 1270 (“Congress may regulate any instrumentality or channel of interstate commerce....”); United States v. Horton, 321 F.3d 476, 481 n. 3 (4th Cir.2003) (reading federal kidnapping statute as exercise of congressional power to prevent “misuse” of channels of commerce by a kidnapper trying “to cover up his trail by moving evidence of his crime into a different state’s jurisdiction”). But cf. United States v. Abdullah, 162 F.3d 897, 901 (6th Cir.1998) (suggesting that a statute enacted under this authority must have as its purpose “to keep open the very avenues by which interstate commerce is transacted”). The Deatons are correct that many cases concerning the power over navigable waters focus on congressional authority to regulate in aid of navigation. E.g., Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713, 724-25, 18 L.Ed. 96 (1865); United States v. Appalachian Elec. Power Co., 311 U.S. 377, 404-05, 61 S.Ct. 291, 85 L.Ed. 243 (1940). But there is no reason to believe Congress has less power over navigable waters than over other interstate channels such as highways, which may be regulated to prevent their “immoral and injurious use[].” Caminetti, 242 U.S. at 491, 37 S.Ct. 192. Congress’s authority over the channels of commerce is thus broad enough to allow it to legislate, as it did in the Clean Water Act, to prevent the use of navigable waters for injurious purposes. See Caminetti, 242 U.S. at 491, 37 S.Ct. 192; Lopez, 514 U.S. at 558, 115 S.Ct. 1624. For example, Congress may outlaw the use of navigable waters as dumping grounds for fill material. The power over navigable waters also carries with it the authority to regulate nonnavigable waters when that regulation is necessary to achieve Congressional goals in protecting navigable waters. See Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 525-26, 61 S.Ct. 1050, 85 L.Ed. 1487 (1941); United States v. Rio Grande Dam Irrigation Co., 174 U.S. 690, 708-09, 19 S.Ct. 770, 43 L.Ed. 1136 (1899); see also United States v. Grand River Dam Auth., 363 U.S. 229, 232, 80 S.Ct. 1134, 4 L.Ed.2d 1186 (1960). Any pollutant or fill material that degrades water quality in a tributary of navigable waters has the potential to move downstream and degrade the quality of the navigable waters themselves. Indeed, the principle that Congress has the authority to regulate discharges into non-navigable tributaries in order to protect navigable waters has long been applied to the Clean Water Act. See, e.g., Ashland Oil, 504 F.2d at 1325-29; cf. United States v. Hartsell, 127 F.3d 343, 348^49 (4th Cir.1997). The Deatons argue that their discharge (or sidecasting of dirt) into wetlands adjacent to the roadside ditch is too trivial to affect water quality in navigable waters. Congress, however, may decide that the aggregate effect of all of the individual instances of discharge, like the discharge by the Deatons, justifies regulating each of them. See Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). And if Congress itself has the authority to make that decision, it may delegate it to the Corps, as long as it provides an “intelligible principle” to guide the agency’s decisionmaking. See, e.g., J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 72 L.Ed. 624 (1928); Skinner v. Mid-Am. Pipeline Co., 490 U.S. 212, 218-24, 109 S.Ct. 1726, 104 L.Ed.2d 250 (1989); see also Darby, 312 U.S. at 120-21, 61 S.Ct. 451. Congress passed the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251(a), and gave the Corps, along with the Environmental Protection Agency, the job of getting this done. The Corps has pursued this goal by regulating nonnavigable tributaries and their adjacent wetlands. This use of delegated authority is well within Congress’s traditional power over navigable waters. It follows that under the Corps’s interpretation, the Clean Water Act does not invade an area of authority reserved to the states. The power to protect navigable waters is part of the commerce power given to Congress by the Constitution, and this power exists alongside the states’ traditional police powers. “Although States have important interests in regulating ... natural resources within their borders, this authority is shared with the Federal Government when the Federal Government exercises one of its enumerated powers” Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 204, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999). Cf. Gibbs, 214 F.Sd at 499-501 (concluding that the application of the Endangered Species Act to private land does not unconstitutionally interfere with local power over land use or wildlife); GDF Realty Invs., 326 F.3d at 639 (same). The federal decision to regulate the discharge of pollutants into tributaries of navigable waters does not “significantly change[ ] the federal-state balance.” See United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). In sum, the Corps’s regulatory interpretation of the term “waters of the United States” as encompassing nonnavigable tributaries of navigable waters does not invoke the outer limits of Congress’s power or alter the federal-state framework. The agency’s interpretation of the statute therefore does not present a serious constitutional question that would cause us to assume that Congress did not intend to authorize the regulation. Indeed, as our discussion of Congress’s Commerce Clause authority makes clear, the federal assertion of jurisdiction over non-navigable tributaries of navigable waters is constitutional. C. The thrust of the Deatons’ final argument about the Corps’s jurisdiction is this: even if the Corps could regulate the roadside ditch without causing a constitutional problem, neither the Clean Water Act nor the Corps’s regulation extends coverage to the ditch. Here, the Deatons make a two-part argument. First, they argue that even if the Act authorizes the Corps to regulate the nonnavigable tributaries of navigable waters, the roadside ditch is not such a tributary. They say that the ditch does not meet the definition of “tributary” at all or, alternatively, it is not a tributary of a navigable water because water flowing from the ditch must pass through several other nonnavigable watercourses before reaching the navigable Wicomico River. In short, the Deatons are arguing here that the Corps is misinterpreting its own regulation by using the tributaries provision, 33 C.F.R. § 328.3(a)(5), to assert jurisdiction over the roadside ditch. Second, they argue that if the tributary regulation does cover the ditch, the regulation is an unreasonable interpretation of the CWA. We hold that we should defer to the Corps’s interpretation of its regulation to include the ditch and that the regulation, read this way, is a reasonable interpretation of the Clean Water Act. This finally brings us to Chevron, and we analyze the Deatons’ statutory and regulatory coverage arguments as follows. We begin with the first step of the Chevron analysis, see 467 U.S. at 842, 104 S.Ct. 2778, and determine whether the Clean Water Act delegates authority to the Corps to decide whether to regulate non-navigable tributaries. Specifically, we ask “whether Congress has directly spoken to the precise question at issue.” Id. When Congress has not spoken directly, but instead has been “silent or ambiguous” on the issue, it has by implication delegated authority to the agency charged with administering the statute, allowing the agency to clarify the ambiguity or fill the gap. Id. at 843-45, 104 S.Ct. 2778. See also Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 742, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996). If we conclude that the statute is silent or ambiguous, we normally move directly to the second step in the Chevron analysis, see 467 U.S. at 843, 104 S.Ct. 2778, and determine whether the agency’s regulation reflects a reasonable construction of the statute, id. In this case, however, we are sidetracked by another issue: the meaning of the regulation itself. The Corps interprets its regulation to cover the roadside ditch, but the Deatons contend that the Corps’s interpretation cannot be squared with the words of the regulation. As a result of this dispute, we must, before proceeding to Chevron’s step two, determine what the regulation actually means. Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425, 439 . (4th Cir.2003). We give “controlling weight” to an agency’s interpretation of its own regulation, “unless [the interpretation] is plainly erroneous or inconsistent with the regulation.” Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945). See also Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997); Kentuckians, 317 F.3d at 439; United States v. Hoechst Celanese Corp., 128 F.3d 216, 221 (4th Cir.1997). If the regulation is unambiguous, then what is known as Seminole Rock deference does not apply, and the regulation’s plain language, not the agency’s interpretation, controls. Christensen v. Harris County, 529 U.S. 576, 588, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). Once we have determined what the regulation means, we can move on to the second step of Chevron, 467 U.S. at 843, 104 S.Ct. 2778, and decide whether the regulation is based on a reasonable construction of the statute. See Kentuckians, 317 F.3d at 439-40 (combining use of Seminole Rock and Chevron tests). We turn to the initial question of whether the statute is ambiguous. If Congress has “spoken to the precise question at issue,” there is no ambiguity and thus no room for the agency interpretation. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. The precise question here is whether the Clean Water Act extends to distant, non-navigable tributaries of navigable waters. Section 404(a) of the CWA regulates discharges into “navigable waters,” 33 U.S.C. § 1344(a), and the Act defines “navigable waters” as “waters of the United States,” id. § 1362(7). The Corps’s regulations interpret the term “waters of the United States.” If Congress had stopped with the basic term “navigable waters,” the term used in § 404(a), 33 U.S.C. § 1344(a), many years of judicial precedent would give us the following clear meaning: “[waters] are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.” The Daniel Ball, 77 U.S. (10 Wall.) 557, 563, 19 L.Ed. 999 (1870). See also Appalachian Elec. Power Co., 311 U.S. at 404-10, 61 S.Ct. 291. In the Clean Water Act Congress elected to redefine “navigable waters,” moving away from the traditional definition. Its choice of the expansive phrase “waters of the United States” indicates an intent to “regulate at least some waters that would not be deemed ‘navigable’ under the classical understanding of that term.” Riverside Bayview, 474 U.S. at 133, 106 S.Ct. 455. SWANCC, of course, emphasizes that the CWA is based on Congress’s power over navigable waters, suggesting that covered non-navigable waters are those with some connection to navigable ones. See SWANCC, 531 U.S. at 167, 172, 121 S.Ct. 675. But we cannot tell from the Act the extent to which nonnavigable tributaries are covered. The statutory term “waters of the United States” is sufficiently ambiguous to constitute an implied delegation of authority to the Corps; this authority permits the Corps to determine which waters are to be covered within the range suggested by SWANCC. See Chevron, 467 U.S. at 843, 104 S.Ct. 2778 (“ ‘The power of an administrative agency to administer a eongressionally created ... program necessarily requires ... the making of rules to fill any gap left ... by Congress.’ ”) (quoting Morton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974)). We next look for the meaning of the regulation promulgated under this delegated authority. Before deferring to the agency interpretation under Seminole Rock, we first decide whether the regulation is ambiguous. Christensen, 529 U.S. at 588, 120 S.Ct. 1655. The regulation, 33 C.F.R. § 328.3(a)(5), defines “waters of the United States” to include tributaries of navigable waters. The Deatons argue that it is wrong to read the regulation to reach all branches of a system that eventually flow into a navigable waterway. They contend that the term “tributary” in the regulation refers only to a nonnavigable branch that empties directly into a navigable waterway. Thus, they say, the roadside ditch is not a tributary of the navigable Wicomico River. We must decide whether this issue is settled by the plain language of the regulation. Webster’s Third New International Dictionary (1993) defines “tributary” as (1) “providing with or serving as a channel for supplies or additional matter” or (2) “one that is tributary to another: as ... a stream.” According to this definition, “tributary” in the regulation would encompass the entire feeder system for a navigable water because even a stream many branches away eventually provides “additional matter” for the navigable water. On the other hand, Webster’s II New Riverside University Dictionary (1988) defines tributary as “[a] river or stream flowing into a larger river or stream.” Under this definition a watercourse like the roadside ditch appears to be a tributary, but it is not clear that it would be a tributary of a larger river several branches downstream. It could be read to mean that only streams flowing directly into a larger river are the larger river’s tributaries. The dictionaries thus agree that the roadside ditch is a tributary, but they do not settle the question of whether it is a tributary of a navigable water (here, the Wicomico River), which is what the regulation covers. “The existence of alternative dictionary definitions of the word ‘[tributary],’ each making some sense under the [regulation], itself indicates that the [regulation] is open to interpretation.” Nat’l R.R. Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 418, 112 S.Ct. 1394, 118 L.Ed.2d 52 (1992). We conclude that the regulation is ambiguous on the question of how far the coverage of tributaries extends. We therefore turn to the agency’s interpretation. The Corps asserts in its brief that “tributaries” in the regulation means “all tributaries,” not just “ ‘short’ or ‘primary’ tributaries.” Appellee’s Br. at 37. In the preamble to a prior generation of CWA regulations, the agency wrote that “Corps jurisdiction ... would extend to ... all tributaries (primary, secondary, tertiary, etc) of navigable waters.” 40 Fed.Reg. 31,320 (1975) (emphasis added). As the Deatons point out, these old regulations cut off Corps jurisdiction at the “headwaters” of a tributary, defined by a minimum water flow that the roadside ditch would not meet. Id. at 31,321, 31,324. But we are concerned here with the definition of the word “tributary.” Although the Corps has not always chosen to regulate all tributaries, it has always used the word to mean the entire tributary system, that is, all of the streams whose water eventually flows into navigable waters. Cf. Headwa ters, Inc. v. Talent Irrigation Dist. 243 F.3d 526, 533 (9th Cir.2001) (considering “tributary” to reach all branches of a system without referring to Corps’s interpretation). Because the Corps’s longstanding interpretation of the word “tributary” has support in the dictionary and elsewhere, it is not plainly erroneous. Nor is it inconsistent with the regulation. The interpretation is therefore entitled to Seminole Bock deference. In short, the word “tributaries” in the regulation means what the Corps says it means. Now that we know the meaning of the regulation — -jurisdiction extends to any branch of a tributary system that eventually flows into a navigable body of water— we can proceed to step two of the Chevron inquiry: is the regulation “based on a permissible construction” of the Clean Water Act. Chevron, 467 U.S. at 843, 104 S.Ct. 2778. The Deatons rely on a passage from SWANCC to assert that the Corps’s current jurisdictional interpretation cannot be reasonable. In SWANCC the Supreme Court said that the Corps had “put forth no persuasive evidence that [it] mistook Congress’ intent” when it promulgated the first set of CWA regulations in 1974, shortly after the Act was passed. SWANCC, 531 U.S. at 168, 121 S.Ct. 675. The first regulations were narrow, reaching only navigable waters. See 39 Fed.Reg. 12,115, 12,119 (1974). We do not read SWANCC to hold that the 1974 regulations represent the only permissible interpretation of the Clean Water Act. Those regulations captured what SWANCC holds to be Congress’s general intent in enacting the CWA, that is, to exercise its power over navigable waters for the purpose of protecting their chemical, physical, and biological integrity. See SWANCC, 531 U.S. at 166, 172, 121 S.Ct. 675 (citing 33 U.S.C. § 1251(a)). In the case before us, however, our conclusion in step one of the Chevron inquiry — that the CWA is ambiguous when it comes to jurisdictional coverage — shows that Congress intended to delegate authority to the Corps to decide how far coverage must extend in order to protect the navigable waters. We defer to an agency’s reasonable interpretation not because the agency is in a better position to know what Congress really wanted, but “because of a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.” Smiley, 517 U.S. at 740-41, 116 S.Ct. 1730. Over the years, the Corps’s understanding of the best way to exercise its discretion under the CWA has evolved. See Newdunn Assocs., 195 F.Supp.2d at 759-62 & n. 8 (detailing changes to Corps’s CWA jurisdictional regulations through revisions and interpretations in 1974, 1975, 1977, 1982, 1986, and 1990). To conclude that the Corps’s current interpretation is reasonable, “we need not find that [its interpretation] is the only permissible construction ... but only that [the agency’s] understanding of this ... statute is a sufficiently rational one to preclude a court from substituting its judgment for [the agency’s].” Chem. Mfrs. Ass’n v. Natural Res. Def. Council, Inc., 470 U.S. 116, 125, 105 S.Ct. 1102, 84 L.Ed.2d 90 (1985) (quotation marks omitted). An agency is allowed to change its mind, so long as its new interpretation is reasonable. Smiley, 517 U.S. at 742, 116 S.Ct. 1730. In other words, “the mere fact that an agency interpretation contradicts a prior agency position is not fatal.” Id.See also Rust, 500 U.S. at 186-87, 111 S.Ct. 1759; Chevron, 467 U.S. at 863-64, 104 S.Ct. 2778; United States v. Mead Corp., 533 U.S. 218, 247, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (Scalia, J., dissenting) (“Where Chevron applies, statutory ambiguities remain ambiguities subject to the agency’s ongoing clarification.”); Piney Mtn. Coal Co. v. Mays, 176 F.3d 753, 766-67 (4th Cir.1999); Mass. v. FDIC, 102 F.3d 615, 621 (1st Cir.1996). There is no suggestion that the Corps’s current interpretation represents a “[sjudden and unexplained change” or that it “does not take account of legitimate reliance on prior interpretation.” Smiley, 517 U.S. at 742, 116 S.Ct. 1730 (citing Motor Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 46-57, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); United States v. Pa. Indus. Chem. Corp., 411 U.S. 655, 670-75, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973); NLRB v. Bell Aerospace Co., 416 U.S. 267, 295, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974)). Accordingly, if the Corps’s current interpretation, 33 C.F.R. § 328.3(a)(5), is based on a reasonable construction of the statute, we will defer to the Corps. We conclude that deference is appropriate. In Riverside Bayview the Supreme Court concluded that the Corps regulation extending jurisdiction to adjacent wetlands was a reasonable interpretation in part because of what SWANCC described as “the significant nexus between the wetlands and ‘navigable waters.’ ” SWANCC, 531 U.S. at 167, 121 S.Ct. 675. There is also a nexus between a navigable waterway and its nonnavigable tributaries. The Corps argues, with supporting evidence, that discharges into nonnavigable tributaries and adjacent wetlands have a substantial effect on water quality in navigable waters. The Deatons do not suggest that this effect is overstated. This nexus, in light of the “breadth of congressional concern for protection of water quality and aquatic ecosystems,” Riverside Bayview, 474 U.S. at 133, 106 S.Ct. 455, is sufficient to allow the Corps to determine reasonably that its jurisdiction over the whole tributary system of any navigable waterway is warranted. The regulation, as the Corps reads it, reflects a reasonable interpretation of the Clean Water Act. The Act thus reaches to the roadside ditch and its adjacent wetlands. III. The Deatons next argue that the district court erred when it held that the Corps used a correct indicator for wetland hydrology (taken from its Wetlands Delineation Manual) in designating parts of their property as wetlands. The Corps’s underlying wetlands regulation, which the Deatons do not challenge, defines wetlands as “areas that are inundated or saturated by surface or ground water” and are home to “vegetation typically adapted for life in saturated soil conditions.” 33 C.F.R. § 328.3(b). To assist in applying this regulation, the Corps uses its Wetlands Delineation Manual, known as the 1987 Manual. See Waterways Experiment Station, Dep’t of the Army, Corps of Engineers Wetlands Delineation Manual (1987). According to the manual, wetlands have “general diagnostic environmental characteristics” in the following three categories: vegetation, soil classification (hydric), and hydrology. 1987 Manual at 13-14. The Deatons do not dispute that their property meets the vegetation and soil criteria. However, they claim that their property lacks the required hydrology. The 1987 Manual lists several methods for determining an area’s hydrology, ranking them by reliability. Id. at 37-41. Using recorded data on water levels, flooding, and soil saturation is the most reliable method. Using field data is next. Id. Among the acceptable ways of gathering field data, the second most reliable is “[visual observation of soil saturation,” which involves digging a hole in the soil and observing water levels. In order to influence the characteristics of vegetation (and meet the wetlands hydrology criterion), water must saturate the soil “within a major portion of the root zone (usually within 12 inches of the surface).” Id. The Corps determined that the Deatons’ property met the hydrology requirement by using the manual’s visual observation method and finding that the soil was saturated to within twelve inches of the surface. The Deatons conducted their own observations, using twenty-two wells to monitor and record groundwater levels for several months. According to the Dea-tons, their study confirms that the areas in question were not saturated to the surface for a sufficient time to be considered wetlands. The Deatons rely on certain language in the manual describing wetlands hydrology as soil “saturation to the surface at some time during the growing season.” 1987 Manual at 34. They therefore argue that the observation-based data showing soil saturation within twelve inches of the surface does not permit a wetlands classification and that the Corps misinterpreted the manual in making the classification. The Corps’s wetlands classification, however, did not involve an interpretation (or misinterpretation) of the manual. The “within twelve inches” indicator is spelled out in the manual, and the Corps simply found this indicator to be present. The analysis of the Deatons’ attack on the Corps’s reliance on the “saturation within twelve inches of the surface” indicator must begin with the Corps’s wetlands regulation. Again, the regulation, 33 C.F.R. § 328.3(b), defines wetlands to include areas that are “saturated by surface or ground water.” The 1987 Manual interprets the regulation. The manual states that areas with wetland hydrology include those where “soils [are] saturated to the surface at some time during the growing season.” 1987 Manual at 34. The manual also states that wetland hydrology is present where the saturation has “an overriding influence on characteristics of vegetation.” Id. Saturation to within twelve inches of the surface is usually sufficient to have an overriding impact on vegetation, according to the manual. Id. at 38. Finally, the presence or absence of the “within twelve inches” indicator may be determined by visual observation. Id. Here, the Corps simply used the manual’s prescribed criterion (the “within twelve inches” indicator) and methodology (visual observation) in determining that the Deatons’ property had the required hydrology for wetlands designation. If the Deatons want to argue that the “within twelve inches” criterion is inappropriate, they must argue that the manual is a flawed interpretation of the regulation defining wetlands. The Deatons, however, do not argue that the manual “is plainly erroneous or inconsistent with” the regulatory definition of wetlands. See Seminole Rock, 325 U.S. at 413-14, 65 S.Ct. 1215. We are therefore bound to defer to the manual’s interpretation of the regulation, id., especially since the interpretation deals in a complex scientific field, wetlands ecology and hydrology. Cf. Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 697, 111 S.Ct. 2524, 115 L.Ed.2d 604 (1991) (finding particular reason to extend Chevron deference when an agency administers a “complex and highly technical regulatory program”). IV. Finally, the Deatons challenge the District Court’s remedial order requiring them to fill in the ditch they dug across their property. The Clean Water Act only regulates the deposit of the material dug out of the ditch, not the digging itself. Therefore, the Deatons argue, requiring them to haul the deposited dirt to a non-wetland part of the property is the proper remedy. According to the Deatons, they would not have needed a permit if they had hauled the dirt away when they dug the ditch, so the remedy for their failure to get a permit should go no further than requiring them to do what would have been lawful in the first place. We review the scope of a remediation order for abuse of discretion. See Dixon v. Edwards, 290 F.3d 699, 718 (4th Cir.2002); see also Sasser v. Adm’r, United States EPA, 990 F.2d 127, 130 (4th Cir.1993). In evaluating remediation or restoration proposals, courts have considered three factors: (1) whether the proposal “would confer maximum environmental benefits,” (2) whether it is “achievable as a practical matter,” and (3) whether it bears “an equitable relationship to the degree and kind of wrong it is intended to remedy.” United States v. Cumberland Farms of Conn., Inc., 826 F.2d 1151, 1164 (1st Cir.1987). See also United States v. Sexton Cove Estates, Inc., 526 F.2d 1293, 1301 (5th Cir.1976) (Rivers and Harbors Act case); United States v. Bradshaw, 541 F.Supp. 884, 885 (D.Md.1982). Although the district court did not consider each of these factors explicitly, it generally covered them. The court found that allowing the Deatons to haul the dirt away instead of filling the ditch would let them benefit from their violation of the Clean Water Act. Moreover, the court found it “doubtful that [removing the sidecast dirt] could be done in an ecologically harmless manner.” In other words, the district court found that the Deatons’ remediation proposal would likely compound the environmental damage they had already done. In light of these findings and the Clean Water Act’s goal of “restoring] and maintaining] the chemical, physical, and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251(a), we conclude that the district court did not abuse its discretion in entering the remediation order. V. We affirm the district court’s order of January 29, 2002, denying the Deatons’ motion to reconsider the issue of Clean Water Act jurisdiction and that court’s order of February 4, 2002, requiring remediation. AFFIRMED

Mitzelfelt v. Department of Air Force

STEPHEN H. ANDERSON, Circuit Judge. The sole issue in this appeal is whether section 6001 of the Resource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C. § 6961, waives all federal sovereign immunity from state civil penalties. We hold that it does not. This case arose when the State of New Mexico notified the United States Air Force that Cannon Air Force Base was violating the State’s hazardous waste laws. After all but one of the violations was corrected, the State ordered the Air Force to remedy the situation and assessed a $5,000 civil penalty. The Air Force corrected the remaining problem but refused to pay the fine. New Mexico sued to collect the penalty. The district court dismissed the action on the grounds of federal sovereign immunity. Section 6001 of RCRA provides that every federal department, agency, and instrumentality “shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural (including any requirements for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief), respecting control and abatement of solid waste or hazardous waste disposal....” 42 U.S.C. § 6961. Courts and commentators have split on the question of whether or not this provision waives federal sovereign immunity to state-imposed monetary penalties, with the majority holding that it does not. Compare United States v. Washington, 872 F.2d 874, 875 (9th Cir.1989) and California v. United States Dep’t of Defense, 18 Envtl.L.Rep. (Envtl.L.Inst.) 21,023, 21,024 (E.D.Cal.1988), aff'd, 878 F.2d 386 (9th Cir.1989) and McClellan Ecological Seepage Situation (MESS) v. Weinberger, 655 F.Supp. 601, 603 (E.D.Cal.1986) and Meyer v. United States Coast Guard, 644 F.Supp. 221, 222-23 (E.D.N.C.1986) and Florida Dep’t of Envtl. Reg. v. Silvex Corp., 606 F.Supp. 159, 164 (M.D.Fla.1985) and Donnelly & Van Ness, The Warrior and the Druid — The DOD and Environmental Law, 33 Fed.Bar News 37, 39 (1986) with Maine v. Department of the Navy, 702 F.Supp. 322, 330 (D.Me.1988) and Ohio v. United States Dep’t of Energy, 689 F.Supp. 760, 764 (S.D.Ohio 1988), appeal docketed, No. 89-3329 (6th Cir. Apr. 20, 1989) and Note, How Well Can States Enforce Their Environmental Laws When the Polluter Is the United States Government?, 18 Rutgers L.J. 123, 131 (1986). “As sovereign, the United States, in the absence of its consent, is immune from suit.” Library of Congress v. Shaw, 478 U.S. 310, 315, 106 S.Ct. 2957, 2962, 92 L.Ed.2d 250 (1986). “[A] waiver of the traditional sovereign immunity ‘cannot be implied but must be unequivocally expressed.’ ” United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953-54, 47 L.Ed.2d 114 (1976) (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502-03, 23 L.Ed.2d 52 (1969); Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957)). “Waivers of immunity must be ‘construed strictly in favor of the sovereign’ and not ‘enlarge[d] ... beyond what the language requires.’ ” Ruckelshaus v. Sierra Club, 463 U.S. 680, 686, 103 S.Ct. 3274, 3278, 77 L.Ed.2d 938 (1983) (quoting McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 19, 96 L.Ed. 26 (1951); Eastern Transp. Co. v. United States, 272 U.S. 675, 686, 47 S.Ct. 289, 291, 71 L.Ed. 472 (1927)) (emphasis added). Applying these principles, we hold that the penalty New Mexico seeks to exact from the Air Force is not a “requirement[ ] ... respecting control and abatement of solid waste or hazardous waste disposal,” 42 U.S.C. § 6961. Therefore, federal sovereign immunity bars New Mexico’s claim. First, the word “requirements” in section 6001 does not unambiguously include civil penalties. While interpreting an analogous statute, the Supreme Court rejected the argument “that whatever is required by a state implementation plan is a ‘requirement.’ ” Hancock v. Train, 426 U.S. 167, 183, 96 S.Ct. 2006, 2014, 48 L.Ed.2d 555 (1976). The word can reasonably be interpreted as including substantive standards and the means for implementing those standards, but excluding punitive measures. See Parola v. Weinberger, 848 F.2d 956, 961 (9th Cir.1988); California v. Walters, 751 F.2d 977, 978 (9th Cir.1984). “[Ejven when Congress clearly provides that federal facilities are to comply with state requirements, states may not impose sanctions for noncompliance — either civil or administrative — absent express Congressional authorization.” Donnelly & Van Ness, supra, 33 Fed.Bar News at 38 (citing Missouri Pac. Ry. Co. v. Ault, 256 U.S. 554, 563-64, 41 S.Ct. 593, 597, 65 L.Ed. 1087 (1921)) (emphasis added). Second, the circumstances surrounding the enactment of RCRA do not show a clear intention to waive federal sovereign immunity to state civil penalties. The legislative history is quite general and makes no reference to such measures, see S.Rep. 988, 94th Cong., 2d Sess. 23-24 (1976); 122 Cong.Rec. 32,599, 33,817 (1976), but New Mexico argues that section 6001 must be read expansively because it was a rejoinder by Congress to the Supreme Court’s decisions in Hancock v. Train, 426 U.S. at 198, 96 S.Ct. at 2021, and Environmental Protection Agency v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 227, 96 S.Ct. 2022, 2035, 48 L.Ed.2d 578 (1976), that the word “requirements” in the Clean Air Act and the Clean Water Act did not include state permit requirements. The Court noted that the statutes required federal installations to comply with state requirements, but not with “all” state requirements. Hancock v. Train, 426 U.S. at 182, 96 S.Ct. at 2014 (emphasis in original). The Court also drew a distinction between substantive requirements and procedural requirements. Id. at 183, 96 S.Ct. at 2014-15. Congress reacted by using the following language in RCRA: “all Federal, State, interstate, and local requirements, both substantive and procedural,” 42 U.S.C. § 6961 (emphasis added). However, the fact that the RCRA language was a response to these decisions does not compel the conclusion that the waiver of sovereign immunity extends to civil penalties. Congress continued to waive immunity only to “requirements,” rather than something broader. In contrast, the Clean Air Act, the Clean Water Act, and the Safe Drinking Water Act were amended in response to Hancock and Environmental Protection Agency to waive sovereign immunity to “requirements, administrative authority [or authorities], and process and sanctions.” See 42 U.S.C. § 7418(a); 33 U.S.C. § 1323(a); 42 U.S.C. § 300j-6(a) (emphasis added). Also, the House of Representatives version of RCRA, which was discarded in favor of the current language, specifically subjected federal agencies to civil penalties. See H.R. 14496, 94th Cong., 2d Sess. (1976). Congress knew how to indicate an intent to waive federal sovereign immunity to state civil penalties, and it did not do so when it enacted RCRA. The legislative response in RCRA to Hancock and Environmental Protection Agency was narrow, and did not extend the waiver far beyond what had been waived in previous statutes. United States ex rel. Tennessee Valley Auth. v. Tennessee Water Quality Control Bd., 717 F.2d 992, 997 (6th Cir.1983), cert. denied, 466 U.S. 937, 104 S.Ct. 1909, 80 L.Ed.2d 458 (1984); Romero-Barcelo v. Brown, 643 F.2d 835, 854 n. 36 (1st Cir.1981), rev’d on other grounds, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982); McClellan Ecological Seepage Situation (MESS) v. Weinberger, 707 F.Supp. 1182, 1198 (E.D.Cal.1988). Finally, we find unpersuasive the argument that we should defer to the position of the Environmental Protection Agency (“EPA”) that RCRA subjects federal instrumentalities to civil penalties. The EPA regulations for the administration of RCRA define “person” to include federal agencies. 40 C.F.R. § 270.2. The regulations also authorize states to impose civil penalties upon violators. 40 C.F.R. § 271.16(a)(3). These provisions can be read to stand for the proposition that federal entities are subject to state-imposed fines, but they hardly constitute a deliberate statement of EPA policy on the matter. Moreover, even if the EPA had clearly stated such a position, we would not be bound by it. For one thing, administrative regulations cannot waive the federal government’s sovereign immunity. United States v. Mitchell, 463 U.S. 206, 215-16, 103 S.Ct. 2961, 2967-68, 77 L.Ed.2d 580 (1983). Also, courts should defer to the judgment of an administrative agency only with reference to topics within the agency’s area of expertise. Racine v. United States, 858 F.2d 506, 508 (9th Cir.1988); Petrou Fisheries, Inc. v. ICC, 727 F.2d 542, 545 (5th Cir.1984); H.W. Wilson Co. v. United States Postal Service, 580 F.2d 33, 37 (2d Cir.1978). The EPA’s expertise is in environmental matters, not on the subject of sovereign immunity. Cf. Lodges 743 and 1746, Int’l Ass’n of Machinists v. United Aircraft Corp., 534 F.2d 422, 452 n. 48 (2d Cir.1975) (court would not defer to NLRB’s judgment that certain Supreme Court decisions applied retroactively), cert. denied, 429 U.S. 825, 97 S.Ct. 79, 50 L.Ed.2d 87 (1976). Because the waiver provision of RCRA is at best ambiguous as to whether or not Congress intended to waive the federal government’s sovereign immunity from state civil penalties, it does not accomplish that purpose. The judgment of the district court is AFFIRMED. . Subsequent Congresses have interpreted section 6001 as waiving federal sovereign immunity from state civil penalties. See H.R.Rep. No. 141, 101st Cong., 1st Sess. 3 (1989); H.R.Rep. 253(V), 99th Cong., 2d Sess. 242 (1986), reprinted in 1986 U.S.Code Cong. & Admin.News 2835, 3124, 3335. However, the views of later Congresses are of little value in ascertaining the intent of the Congress which passed the legislation. Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 117-18, 100 S.Ct. 2051, 2060-61, 64 L.Ed.2d 766 (1980) (quoting United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 331-32, 4 L.Ed.2d 334 (1960)); International Bhd. of Teamsters v. United States, 431 U.S. 324, 354 n. 39, 97 S.Ct. 1843, 1864 n. 39, 52 L.Ed.2d 396 (1977); United States v. Southwestern Cable Co., 392 U.S. 157, 170, 88 S.Ct. 1994, 2001-02, 20 L.Ed.2d 1001 (1968) (quoting, e.g., Rainwater v. United States, 356 U.S. 590, 593, 78 S.Ct. 946, 949, 2 L.Ed.2d 996 (1958); Haynes v. United States, 390 U.S. 85, 87 n. 4, 88 S.Ct. 722, 725 n. 4, 19 L.Ed.2d 923 (1968)); United States v. Philadelphia Nat'l Bank, 374 U.S. 321, 348-49, 83 S.Ct. 1715, 1733-34, 10 L.Ed.2d 915 (1963). . Such an interpretation is not mandatory, however, for nowhere do the regulations specifically subject all "persons” to such penalties.

Illinois v. City of Milwaukee

TONE, Circuit Judge. The State of Illinois filed this action under the federal common law of nuisance to enjoin the City of Milwaukee and the Sewerage Commissions of the City and County of Milwaukee from discharging raw sewage and inadequately treated sewage into Lake Michigan. Illinois alleged and undertook to prove at trial that the sewage contains pathogens, disease-causing viruses and bacteria, which are transported by currents into parts of the lake that lie within Illinois, where they present a substantial threat to the health of Illinois residents, and also that the sewage contains nutrients that accelerate eutrophication of the lake. The State of Michigan intervened as a plaintiff on the eutrophication issue only. After a four month trial, the district court found that plaintiffs had proved their allegations and entered a judgment requiring defendants to cease discharging raw sewage and to treat sewage before discharging it in compliance with effluent limitations more stringent than the minimum limitations imposed pursuant to the Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq. Defendants appeal, raising the issues of (1) whether the relief available in an action based on the federal common law of nuisance is greater than that available under the federal statute, and (2) whether the evidence in this ease is sufficient to support the relief granted. As to the first question, we hold that the statute does not limit the relief that may be granted; as to the second, we hold that the evidence is sufficient to support only some of the relief granted and therefore affirm in part and reverse in part. This litigation began with Illinois’ petition for leave to file an original action in the Supreme Court of the United States, which was denied, Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972). Illinois then filed suit in the United States District Court for the Northern District of Illinois. Defendants’ motions to dismiss for lack of in personam jurisdiction and improper venue were denied, Illinois v. Milwaukee, 4 E.R.C. 1849 (N.D.Ill.1972); later, defendants’ motions to dismiss for failure to state a claim on which relief could be granted were also denied, Illinois v. Milwaukee, 366 F.Supp. 298 (N.D.Ill.1973). In due course the case proceeded to trial, at the conclusion of which the judge orally and extemporaneously announced his findings of fact and conclusions of law. The facts and the relief granted will be described later, as they become pertinent to the issues discussed. Defendant-appellants’ position is supported by the briefs of three amici curiae : the State of Wisconsin, the National League of Cities, and the United States Conference of Mayors. In addition, the United States has filed a brief amicus curiae in which it takes no position on the merits but supports the arguments of Illinois and Michigan that the federal common law of nuisance is not preempted or limited by federal legislation. After oral argument this court ordered supplemental briefing addressed to (1) the elements required to be proved to establish a claim for a common law nuisance, (2) identification of particularized findings of the district court considered material to those elements and record references to the evidence supporting those findings, and (3) identification of evidence in the record supporting the reasonableness and necessity of the relief granted by the trial court. The parties filed extensive supplemental briefs, and each side subsequently filed a reply to the other’s supplemental brief, as a consequence of which submission of the case was delayed until October 1978. I. Objections to the Forum Defendants raise three arguments that may be broadly characterized as objections to the forum. First, defendants contend that they have committed no “tortious act within” the State of Illinois as that phrase is used in the Illinois “long-arm” statute, § 17 of the Illinois Civil Practice Act, Ill. Rev.Stat. ch. 110, § 17 (1977), and therefore service of process was ineffective and the United States District Court sitting in Illinois could not exercise personal jurisdiction over them. See Rule 4(e), Federal Rules of Civil Procedure (Fed.R.Civ.P.). Second, defendants contend that their contacts with Illinois are insufficient to meet the minimum required by International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Third, defendants contend that even if the court had personal jurisdiction, venue was improper. Judge Bauer, then a district judge, rejected these contentions in denying defendants pretrial motions to dismiss in Illinois v. Milwaukee, supra, 4 E.R.C. at 1850, and we do likewise. For purposes of .§ 17 “a tort is committed in the place where the injury occurs.” McBreen v. Beech Aircraft Corp., 543 F.2d 26, 28 (7th Cir. 1976). It seems beyond dispute that injury to the plaintiff in this case occurred in Illinois. Cf. Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 500, 91 S.Ct. 1005, 28 L.Ed.2d 256 (1971). As to the second contention, the critical issue is whether it is fair and reasonable to require the defendants to defend in Illinois. See Kulko v. Superior Court of California, 436 U.S. 84, 92, 98 S.Ct. 1690, 56. L.Ed.2d 132 (1978); Telco Leasing, Inc. v. Marshall County Hospital, 586 F.2d 49 (7th Cir. 1978). Each year defendants dump into Lake- Michigan millions of gallons of pathogen-containing sewage, which the district court found is sometimes carried into Illinois waters and presents a substantial threat of harm to Illinois residents. Under such circumstances, we do not think it unfair or unreasonable to require the defendants to defend their conduct in a federal forum located within the State of Illinois. See Ohio v. Wyandotte Chemicals Corp., supra, 401 U.S. at 500, 91 S.Ct. 1005. Defendants argue that venue was improper for three different reasons: (1) the venue provision of the Federal Water Pollution Control Act Amendments of 1972, Pub.L. No. 92-500, 86 Stat. 816, requires that the suit be filed in the district where the source is located, (2) all “nuisance” actions are “local” and therefore must be filed in the district where the source is located, and (3) all actions against a municipal corporation are “local” and therefore must be filed in the district where the municipal corporation is located. The first argument is quickly disposed of, for the venue provision of the statute is by its terms inapplicable. ' That provision is relevant only to “action[s] respecting a violation ... of an effluent standard or limitation . brought under [§ 505] . . . .” § 505(c)(1). Here, plaintiff’s action is based on the federal common law of nuisance. Therefore the relevant venue provision is 28 U.S.C. § 1391(b), which permits suit in either the “judicial district where all defendants reside, or in which the claim arose . .” Illinois v. Milwaukee, supra, 406 U.S. at 108 n.10, 92 S.Ct. at 1395 n.10. Whatever may be the significance of state law in determining whether an action is “transitory” or “local” in other contexts, we agree with the district court, Illinois v. Milwaukee, supra, 4 E.R.C. at 1850, that the language in the Supreme Court’s opinion in Illinois v. Milwaukee, supra, 406 U.S. at 108 n.10, 92 S.Ct. 1385, indicates that an action against a municipal corporation and based on the federal common law of nuisance may be filed, pursuant to 28 U.S.C. § 1391(b), in either the district where all the defendants reside or the district where the claim arose, without regard to any otherwise applicable state venue statutes or common law rules. In this case, the claim arose in the Northern District of Illinois, where the injury was suffered, and therefore venue was proper. II. Effect of Federal Statutes on Federal Common Law of Nuisance In Illinois v. Milwaukee, supra, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712, the Court denied Illinois’ petition for leave to file an original action under 28 U.S.C. § 1251(a)(1) on the ground that “States,” as used in that provision, does not include political subdivisions. Id. at 98, 92 S.Ct. 1385. The Court also declined to exercise its jurisdiction under 28 U.S.C. § 1251(b)(3), since the issues raised in the complaint were governed by federal common law, and therefore an appropriate district court would have jurisdiction of the case under 28 U.S.C. § 1331(a). After reviewing the provisions of the Federal Water Pollution Control Act, 62 Stat. 1155, and other federal legislation regulating pollution of interstate waters, the Court held that federal common law had not been preempted, but noted “that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance.” Id. at 107, 92 S.Ct. at 1395. Shortly after that decision Congress adopted the comprehensive Federal Water Pollution Control Act Amendments of 1972, Pub.L. No. 92-500, 86 Stat. 816. In 1977 Congress further amended the Act. Pub.L. No. 95-217, 91 Stat. 1566. Defendants concede that neither the 1972 nor the 1977 amendments preempt the federal common law of nuisance. Wisconsin’s brief amicus curiae, however, argues that the comprehensive statutory scheme preempts the common law. The brief of the United States as amicus curiae argues to the contrary. Since the issue concerns our jurisdiction, we are obliged to consider it. See, e. g., American Meat Institute v. EPA, 526 F.2d 442, 448-449 (7th Cir. 1975). In addition, we consider whether the statute, even if it does not preempt the federal common law, limits the relief that may appropriately be granted or otherwise influences the principles to be applied in this action. A. Federal Water Pollution Control Act 1. The Statute Before 1972 The pre-1972 Federal Water Pollution Control Act, 62 Stat. 1155, as amended, 33 U.S.C. 1151, et seq. (1970), authorized each state, with the approval of the Secretary of the Interior, to adopt “water quality criteria applicable to interstate waters or portions thereof within” the state, 33 U.S.C. § 1160(c)(1) (1970), for the purposes of protecting the public health or welfare and enhancing the quality of water, see 33 U.S.C. § 1160(c)(3) (1970). If any state failed to adopt acceptable water quality criteria, the Act authorized the Secretary of the Interior to prescribe them, 33 U.S.C. § 1160(c)(2) (1970); water quality standards prescribed by the Secretary were subject to modification after review by a “Hearing Board” on petition of the governor of any state affected by the standards, 33 U.S.C. § 1160(c)(4) (1970). The Act also provided enforcement procedures, recently described by the Supreme Court as “cumbrous.” EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 202, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976); see also Illinois v. Milwaukee, supra, 406 U.S. at 103, 92 S.Ct. 1385 (describing the enforcement procedures as “long” and “drawn-out”). The procedures for abating pollution originating in one state but allegedly causing harm in a second state are of primary importance for our purposes. The Act provided that upon complaint of the governor or water pollution control agency of the second state, the Secretary should call a conference, giving all the interested parties notice of, and an opportunity to make statements at, the conference. 33 U.S.C. § 1160(d)(1), (3) (1970). After the conference, the Secretary was directed to prepare a report for the benefit of the state agencies represented at the conference in which he summarized the proceedings and discussed, among other things, the adequacy of the measures taken to abate the pollution. 33 U.S.C. § 1160(d)(4) (1970). If the measures already taken were deemed inadequate, the Secretary was to recommend appropriate remedial action to the water pollution agency in the state from which the pollution came. 33 U.S.C. § 1160(e) (1970). If after “at least six months” the state agency had not taken the necessary action, the Secretary was directed to conduct hearings at which all the interested parties would again be given an opportunity to make statements, this time before a “Hearing Board.” 33 U.S.C. § 1160(f)(1) (1970). If the Hearing Board found that pollution endangering the public health or welfare was indeed occurring and that adequate steps toward abatement had not been taken, it submitted its findings and recommendations “concerning the measures, if any, which it [found] to be reasonable and equitable to secure abatement of such pollution.” Id. The Secretary then forwarded the Hearing Board’s findings and recommendations “together with a notice specifying a reasonable time (not less than six months) to secure abatement of such pollution” to the polluters and the originating state’s water pollution control agency. Id. If the polluter or state agency failed to take “action reasonably calculated to secure abatement” within the specified time, then the Secretary was authorized to request the Attorney General to file suit to secure abatement. 33 U.S.C. § 1160(g)(1) (1970). Discharges that reduced the quality of water below any “water quality criteria” established under the Act were subject to abatement pursuant to similar procedures. 33 U.S.C. § 1160(c)(5) (1970). The Act made no provision for private abatement suits. It is this system of interstate water pollution abatement, in combination with the discharge permit system administered by the Army Corps of Engineers, see note 16, infra, and other federal legislation, that the Court found insufficient to preempt the federal common law of interstate water pollution in Illinois v. Milwaukee, supra, 406 U.S. at 101-103, 107, 92 S.Ct. 1385. 2. The 1972 Act Because of the inadequacies inherent in the “water quality” approach and, among other things, the ineffectiveness of the enforcement procedures described above, Congress adopted the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251, et seq. The 1972 amendments, which we sometimes refer to herein as the Act or FWPCA, substantially rewrote the statute, supplementing the water quality criteria with direct discharge limitations and greatly strengthening enforcement procedures. Congress declared that the national goal was to eliminate the discharge of pollutants into navigable waters by 1985. To achieve that goal, Congress established general technology-based levels of treatment for any pollutant that is to be discharged into navigable waters and specified dates by which those levels of treatment are to be achieved, § 301; all point sources except publicly owned treatment works must adopt the “best practicable control technology currently available” by July 1, 1977, and the “best available technology economically achievable” by July 1, 1983, §§ 301(b)(1)(A), (2)(A); publicly owned treatment works are required to adopt “secondary treatment” by July 1, 1977 and “the best practicable waste treatment technology over the life of the [treatment] works” by July 1, 1983, §§ 301(b)(1)(B), (2)(B), and 201(g)(2)(A). The Act directs the Administrator of the Environmental Protection Agency (EPA) to prescribe the specific effluent limitations achievable using “best practicable” treatment technology, §§ 301(b)(1)(A), 304(b)(1), “best available” treatment technology, §§ 301(b)(2)(A), 304(b)(2), and “secondary” treatment technology, §§ 301(b)(1)(B), 304(d)(1). See, e. g., E. I. du Pont de Nem-ours & Co. v. Train, 430 U.S. 112, 126-136, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977); American Meat Institute v. EPA, supra, 526 F.2d at 448-452. In addition, all point sources, presumably including publicly owned treatment works, must comply with “any more stringent limitation . . . established pursuant to any State law or regulations (under authority preserved by § 510) or any other Federal law or regulation . . . .” § 301(b)(1)(C). The 1972 Act also created a permit system, called the National Pollutant Discharge Elimination System (NPDES), under which discharge permits may be granted by EPA or, where a state provides satisfactory assurances that it will enforce the requirements of the Act and EPA regulations, a designated agency of the state. Any discharges, except in compliance with the limitations imposed in a permit, are declared unlawful. § 301(a). A permit must require the discharger to meet the minimum effluent limitations prescribed in the Act and EPA regulations. § 402(b)(1)(A). Each state agency established under the National Pollutant Discharge Elimination System is required to notify EPA of any permit to be issued under the program. § 402(d)(1). If, under the permit, the waters of another state “may be affected,” the agency is required to notify the other state, to give the other state an opportunity to submit written recommendations concerning the limitations to be imposed in the permit, and, if those recommendations are not adopted, to explain why in writing to EPA and the other state. §§ 402(b)(3), (5). EPA may veto the issuance of any discharge permit if the waters of a state other than the issuing state may be affected. §§ 402(d)(2)(A), (b)(5). It is not clear whether the veto can be based on a ground other than violation of a standard imposed pursuant to the Act by EPA or a state. The language of § 402(d)(2)(A) suggests that it can. The legislative history, however, indicates that the veto must be based upon the issuing state’s failure to impose limitations sufficient to assure that applicable effluent limitations, either those imposed under the Act by EPA or those imposed by the affected state, are respected. Since there has been no veto here, it is unnecessary for us to resolve this ambiguity- The 1972 Act also substantially modified enforcement procedures. “Whenever, on the basis of any information available to him, the Administrator finds that any person is in violation of any condition or limitation” imposed under the Act, including those contained in state-issued discharge permits, he may at his option “issue an order requiring such person to comply,” commence a civil action for appropriate relief in a federal district court, or notify the appropriate state agency of the violation. §§ 309(a)(1), (3), (b). If the latter course is chosen and after 30 days the state agency -has not taken appropriate action to secure compliance, the Administrator must exercise one of the first two options. § 309(a). Criminal and civil penalties are provided in §§ 309(c) and (d). In accord with the stated policy of encouraging “[p]ublic participation in the development, revision, and enforcement of any regulation, standard, effluent limitation, plan, or program established” under the Act, § 101(e), Congress authorized any “person . . . having an interest which is or may be adversely affected” to file a civil action to secure compliance with the Act against any person alleged to be in violation of the provisions of the Act or against the Administrator if he fails to perform any nondiscretionary duty under the Act. §§ 505(a), (g). But “[n]othing in [§ 505] shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency).” § 505(e). 3. The 1977 Amendments. The 1977 amendments are fairly extensive, but of limited significance for our purposes. In them Congress modified the National Pollutant Discharge Elimination System to provide that when EPA objects to the issuance of a permit, it must also state “the reasons for such objection and the effluent limitations and conditions which such permit would include if it were issued by the Administrator.” § 65(b), 91 Stat. 1599, as amended, 33 U.S.C.A § 1342(d)(2). A procedure was provided to avoid the impasse that had been possible under the 1972 Act when EPA objected to the issuance of a specific permit but the state agency refused to issue a modified permit; under the amendments, if EPA “objects to the issuance of a permit,” the issuing state is entitled to a public hearing on the objection. § 65(a), 91 Stat. 1599 as amended, 33 U.S.C.A. § 1342(d)(4); see S.Rep.No.95-370, 95th Cong., 1st Sess. 73, reprinted in [1977] U.S.Code Cong. & Admin.News, pp. 4326, 4398; H.R.Rep.No.95-830, 95th Cong., 1st Sess. 96-97, reprinted in [1977] U.S.Code Cong. & Admin.News, pp. 4424, 4471-4472. If the state either fails to request a hearing within 90 days of the objection or fails to submit a revised permit meeting the objection, then EPA may issue a permit itself “in accordance with the guidelines and requirements” of the Act. § 65(a), supra. Congress also adopted provisions authorizing EPA, with the concurrence of the State in which the point source is located, under limited circumstances, to modify the dates by which the effluent levels established in the 1972 Act for all point sources must be met. See §§ 43, 44, 45, 91 Stat. 1583-1586, as amended, 33 U.S.C.A. §§ 1311(g), (h), (i). The provisions applicable to modification of compliance dates for publicly owned treatment works are of particular significance here. Where construction is necessary for compliance with the “secondary treatment” or “more stringent” requirements of the 1972 Act, §§ 301(b)(1)(B), (C), but cannot be completed in time to meet these requirements or “the United States has failed to make financial assistance . . available in time to achieve such limitations . . .,” EPA or the appropriate state agency may extend the compliance date to July 1, 1983. § 45, 91 Stat. 1584-1585, as amended, 33 U.S.C.A. § 1311(i). The language and legislative history of this provision, however, make it clear that the maximum compliance possible at the time must be achieved throughout the period and complete compliance achieved at the “earliest date practically possible.” Id.; S.Rep.No.95-370, 95th Cong., 1st Sess. 47, reprinted in [1977] U.S. Code Cong. & Admin.News at 4372. The 1977 amendments also provide for pollutant-specific modifications of the requirements of the 1972 Act. § 44, 91 Stat. 1584, as amended, 33 U.S.C.A. § 1311(h). Upon an adequate showing that, among other things, “there is an applicable water quality standard specific to the pollutant for which the modification is requested” and the modification would “not interfere with the attainment or maintenance of that water quality which assures protection of public water supplies and the protection . of a balanced . . . population of shellfish, fish, and wildlife, and allows recreational activities, in or on the water . . . EPA, “with the concurrence of the State, may issue a permit . . . which modifies the secondary treatment effluent limitations prescribed under the Act for publicly owned treatment works.” Id. The only other provision of the 1977 amendments that is of significance for our purposes directs EPA to conduct a study and report to Congress on “the status of combined sewer overflows in municipal treatment works operations.” § 70,91 Stat. 1608, as amended, 33 U.S.C.A. § 1375(c). The Senate committee studying the proposed legislation noted that “the second largest category of municipal treatment needs identified in the 1976 national needs list is the correction of combined sewer overflows . . . . Examples brought to the committee’s attention showed combined sewer overflow problems to be a significant source of untreated sewage to the Nation’s waters.” S.Rep.No.95-370, supra, 81, reprinted in [1977] U.S.Code Cong. & Admin. News, supra, p. 4406. One of the purposes of the report is to determine whether new legislation to address the problem is needed. § 70, 91 Stat. 1608, as amended, 33 U.S.C.A. § 1375(c). B. Preemption and Compliance with the Statute As a Defense Congress has thus established a comprehensive and detailed system for the regulation and eventual elimination of pollutant discharges into the nation’s waters. Nevertheless, Congress has expressly stated that the effluent limitations imposed under the Act do not preclude the establishment of more stringent limitations by any state, § 510, see United States Steel Corp. v. Train, supra, 556 F.2d at 835-836, 837-838; and nothing in the Act is to be construed as “limiting the authority or functions of any officer or agency of the United States under any other law or regulation not inconsistent with [the] Act; . . . .” § 511(a). The language of § 511(a) is arguably broad enough to include the federal courts and, when read in the light of § 510, suggests, if it does not require, the conclusion that Congress did not intend to preempt the federal common law of nuisance. The imposition of effluent limitations more stringent than those required under the Act, if necessary to prevent harm to a complaining party, is fully consistent with the provisions of the Act. Because of the shared authority between the federal government and the individual states established in the Act, it is plain that uniformity was not thought necessary. Even the minimum effluent limitations prescribed in the Act are not uniform because the provisions for the ad hoc modification of the degree of compliance required for specific point sources will necessarily lead to variation. While providing in § 505 for private suits to enforce the effluent limitations prescribed in the Act, Congress specifically stated that nothing in the section “shall restrict any right which any person . may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief . . .thus indicating that preemption of existing remedies was not intended. There is nothing in the phrase “any statute or common law” that suggests that this provision is limited to state common law. There is no reason to believe that Congress would have wished to preserve state common law claims and preclude federal common law claims. The preservation of all existing remedies is consistent with the recognition in this,Act of the value of public participation in all aspects of the effort “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” exemplified by the direction to EPA and states participating in the national discharge permit system to encourage such participation. See also Citizens for a Better Environment v. EPA, 596 F.2d 720, 722 (7th Cir. 1979). We conclude that the federal common law of nuisance has not been preempted by the Act. For the same reasons, we reject defendants’ contention that compliance with a discharge permit issued under the Act is a defense in an action based on the federal common law of nuisance. Cf. New York v. New Jersey, 256 U.S. 296, 308, 41 S.Ct. 492, 65 L.Ed. 937 (1921) (in which the Court noted a construction permit issued by the Secretary of War, presumably under the provisions of the Rivers and Harbors Act of 1899 that were replaced by § 402 of the 1972 Act, see note 16, supra, incorporating discharge limitations adopted in a settlement agreement with United States but did not regard the limitations as dispositive in New York’s action against New Jersey); Baltimore & Potomac R. Co. v. Fifth Baptist Church, 108 U.S. 317, 2 S.Ct. 719, 27 L.Ed. 739 (1883) (rejecting the defendant railroad’s arguments that compliance with District of Columbia smoke stack regulations, the existence of a federal charter authorizing defendants to “make and construct all works whatever, which might ‘be necessary and expedient’,” or congressional approval of the train route constituted a defense in a nuisance action when plaintiff suffered injury resulting from defendant’s activity). But compare Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. (54 U.S.) 518, 14 L.Ed. 249 (1851) with Pennsylvania v. Wheeling Bridge Co., 18 How. (59 U.S.) 421, 15 L.Ed. 435 (1856) and Northern Transportation Co. v. Chicago, 9 Otto (99 U.S.) 635, 25 L.Ed. 336 (1879). C. Limitations on Relief Defendants contend that even if. the Act does not preempt the federal common law of nuisance, and even if compliance with the Act is not a defense, no more stringent relief can be granted by way of abatement than the federal minimum prescribed by the Act and EPA. In other words, although the federal government need not speak with a single voice, the words must be the same. As noted above, however, Congress has expressly stated that nothing in the Act should be read to limit the authority of any federal “officer or agency” so long as that authority is consistent with the provisions of the Act. Consistency does not require uniformity; the provision expressly preserving the authority of the states to impose limitations more stringent than those required under the Act, § 510, indicates that Congress did not think more stringent limitations inconsistent with the Act. Moreover, the savings clause, § 505(e), speaks not only of rights, but also of remedies. Since any effluent limitations less stringent than those provided in the Act, except pursuant to the modification procedures established, are prohibited, § 505(e) must contemplate more stringent limitations than those imposed in the Act. If accepted, defendants’ argument would reduce a cause of action under the federal common law to no more than an alternative avenue for enforcement of the statute. For the reasons stated above, we do not think that Congress intended any such restriction or that the statute, fairly read, limits the relief available in a federal court. D. Common Law of the Statute The conclusion that the Federal Water Pollution Control Act, as amended, does not preempt the federal common law of nuisance or limit the relief available in this case does not render that Act irrelevant. A statute that does not by its terms govern the case before a court may contain indications of the legislature’s judgment on relevant issues of policy or provide an appropriate principle for decision of the case. In applying the federal common law of nuisance in a water pollution case, a court should not ignore the Act but should look to its policies and principles for guidance. See Illinois v. Milwaukee, supra, 406 U.S. at 103 n.5, 92 S.Ct. 1385; of. Textile Workers v. Lincoln Mills, 353 U.S. 448, 456-457, 77 S.Ct. 923, 1 L.Ed.2d 972 (1957). The Act contains no rules or principles that control in this case. We think, however, that the minimum treatment standards found acceptable by Congress and the effluent limitations imposed under the system established in the Act provide an appropriate starting point. Cf., e. g., Wallis v. Pan American Petroleum, 384 U.S. 63, 69, 86 S.Ct. 1301, 16 L.Ed.2d 369 (1966). In the 1972 Act, Congress said that by July 1, 1977, publicly owned treatment works must, with several significant exceptions, adopt “secondary” treatment. That command was qualified by the 1977 amendments authorizing EPA or the appropriate state agency to extend the time for compliance with the secondary treatment standard to July 1, 1983. The Act’s generally more stringent second stage provisions only require “the application of the best practicable waste treatment technology over the life of the works . . .,” by July 1,1983. §§ 301(b)(2)(B), 201(g)(2)(A) (emphasis added). Thus, Congress has approved secondary treatment as an acceptable minimum for publicly owned treatment works at least until 1983 and perhaps later. EPA has defined secondary treatment for the purposes of the Act in terms of resulting effluent quality. 40 C.F.R. § 133.102. Even though states are authorized to establish more stringent effluent limitations than those required by EPA, §§ 402, 510, there appear to be no Wisconsin regulations imposing more stringent standards, and the NPDES permits issued by the Wisconsin agency to the defendants in this case impose limitations no more stringent than those required by EPA. As we shall explain in more detail below, the effluent limitations contained in the permits are less stringent than those imposed by the district court in this case. In addition, the permits contain no prohibitions against discharges of raw sewage through overflows. ■’ While it is appropriate to give weight to Congress’ expectations in adopting the Act and the standards established by EPA pursuant to the Act, we cannot forget that Congress deliberately chose to preserve existing rights and remedies. Thus, if the evidence in this, case shows that requirements more stringent than those imposed in the NPDES permits are necessary to protect Illinois residents from harm caused or threatened by the defendants’ sewage discharges, plaintiffs are entitled to have the more stringent requirements imposed. We can think of no other reason for Congress’ preserving previously existing rights and remedies than to protect the interests of those who would be able to show that the requirements imposed pursuant to the federal statute are inadequate to protect their interests. When the complaining party is a neighboring state, the federal common law of nuisance provides a peculiarly appropriate remedy. III. Elements of the Claim, Relief, and Standard of Proof The elements of a claim based on the federal common law of nuisance are simply that the defendant is carrying on an activity that is causing an injury or significant threat of injury to som; cognizable interest of the complainant. See Georgia v. Tennessee Copper, 206 U.S. 230, 238-239, 27 S.Ct. 618, 51 L.Ed. 1038 (1907). It has been said that “in such a suit traditional limitations on equitable remedies are applicable.” United States v. Stoeco Homes, 498 F.2d 597, 611 (3d Cir. 1974). This would mean that an injunction would be granted only when the right to relief is clear and the remedy at law inadequate. Missouri v. Illinois, 180 U.S. 208, 248, 21 S.Ct. 331, 45 L.Ed. 497 (1901); Wright & Miller, 11 Federal Practice and Procedure, § 2942, 364, 368-369 (1973); see also Mugler v. Kansas, 123 U.S. 623, 672-673, 8 S.Ct. 273, 31 L.Ed. 205 (1887). But when a state complains of pollution originating outside its territory the rules are different: If the state has a case at all, it is somewhat more certainly entitled to specific relief than a private party might be . . . It is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted . . . by the act of persons beyond its control . . If any such demand is to be enforced this must be, notwithstanding the hesitation that we might feel if the suit were between private parties, and the doubt whether, for the injuries which they might be suffering to their property, they should not be left to an action at law. Georgia v. Tennessee Copper, supra, 206 U.S. at 237-238, 27 S.Ct. at 619. Moreover, when the polluting activity is shown to endanger the public health, injunctive relief is generally appropriate. See Harrison v. Indiana Auto Shredders Co., 528 F.2d 1107, 1122-1123 (7th Cir. 1976) (diversity case applying Indiana law). Similarly, while determining whether to issue an injunction generally involves a balancing of the interests of the parties, Wright & Miller, supra, § 2942 at 366-367 & n.43, the balance is of less importance when the plaintiff is a sovereign state. See Georgia v. Tennessee Copper, supra, 206 U.S. at 238, 27 S.Ct. 618. And if the pollution endangers the public health, injunctive relief is proper, without resort to any balancing. See Harrison v. Indiana Auto, supra, 528 F.2d at 1122-1123. In exercising its original jurisdiction in interstate pollution cases, the Supreme Court has applied a preponderance of the evidence standard when the defendant is a private party, Georgia v. Tennessee Copper, supra, 206 U.S. at 238-239, 27 S.Ct. 618 but a clear and convincing evidence standard when the defendant is a state, New York v. New Jersey, 256 U.S. 296, 309, 41 S.Ct. 492, 65 L.Ed. 937 (1921); Missouri v. Illinois, 200 U.S. 496, 520-522, 26 S.Ct. 268, 50 L.Ed. 572 (1906). In both New York v. New Jersey and Missouri v. Illinois, supra, 200 U.S. at 520-522, 26 S.Ct. 268, use of the higher standard was attributed to the sovereign status of the defendant. For example, in New York v. New Jersey the Court explained that the burden upon the state of New York of sustaining the allegations of its bill is much greater than that imposed upon a complainant in an ordinary suit between private parties. Before this court can be moved to exercise its extraordinary power under the Constitution to control the conduct of one state at the suit of another, the threatened invasion of rights must be of serious magnitude and it must be established by clear and convincing evidence. New York v. New Jersey, supra, 256 U.S. at 309, 41 S.Ct. at 496. Justice Harlan’s opinion for the Court in Ohio v. Wyandotte Chemicals, supra, 401 U.S. at 501-502, 504-505, 91 S.Ct. 1005, however, suggests that use of the higher standard was a part of an accommodation devised to enable the Supreme Court, structured as it is “to perform as an appellate tribunal,” id. at 498, 91 S.Ct. at 1009, to cope with original actions in that Court involving interstate disputes regarding air and water pollution. He also indicated that the higher standard of proof might be appropriate in original actions against private defendants as well. Id. at 501 n.4, 91 S.Ct. 1005. Justice Harlan’s rationale for requiring the higher standard of proof is inapplicable when the action is tried in a trial court; and the alternative, sovereign state rationale recognized in the earlier cases is inapplicable here, cf. Illinois v. Milwaukee, supra, 406 U.S. at 98, 92 S.Ct. 1385 (political subdivisions of a state are not “States” as used in 28 U.S.C. § 1251(a)(1), see note 6, supra). Accordingly, we think the correct standard of proof in this case is a preponderance of the evidence rather than clear and convincing evidence, although we can say, as did the district court, that use of either standard would produce the same result. IV. Sufficiency of the Evidence Supporting Findings of Fact The district court found that the defendants dump substantial quantities of pathogen-containing sewage into Lake Michigan each year, that the lake currents carry the pathogens into Illinois waters, where they may infect drinking water supplies and pose a danger to swimmers, and therefore that defendants’ actions pose a significant risk of injury to Illinois residents. These findings are not clearly erroneous. Rule 52, Fed.R.Civ.P. The evidence supporting the findings, which we have carefully reviewed, may be summarized as follows: Any population as large as Milwaukee’s will include carriers of enteroviruses, who will excrete the viruses. Therefore the sewage of a city as large as Milwaukee inevitably contains these viruses. Similarly, the sewage of any large city will also contain pathogenic bacteria. The sewer systems defendants operate have a total of approximately 239 bypass or overflow points from which untreated sewage escapes to flow directly or indirectly into lake Michigan or into rivers that empty into the lake. Most of these overflow points are either pumping stations or what are called “gravity overflows.” Both types are triggered by the level of sewage in the system. In the former, pumps are activated by electrodes inside the sewer when the sewage flow reaches the level of the electrodes; when the pumps are activated, raw sewage is either pumped into storm sewers, which empty into rivers that in turn empty into Lake Michigan, or dumped directly into the rivers. The gravity overflows are simply pipes placed inside the sewers; when the sewage level rises to that of the pipes, raw sewage pours out into either storm sewers or rivers and then into Lake Michigan. Since both types of overflow points are activated by the level of sewage, an overload or a blockage in the sewers that causes the sewage level to rise will cause overflows, even if the sewer capacity would otherwise be adequate. Because ground water and water from storm sewers sometimes “infiltrates” or flows into sanitary sewers, overflows from the sanitary sewers, as well as from combined sewers, are especially likely during wet weather. In a single month in 1976 the untreated sewage discharged from just 11 of the 239 overflow points totalled 646.46 million gallons. In addition to the pathogens in the raw sewage that the defendants dump into Lake Michigan, pathogens are contained in the effluent that the South Shore and Jones Island treatment plants discharge directly and indirectly into Lake Michigan when treatment of sewage at those plants is inadequate, as it has sometimes been. Biochemical oxygen demand (BOD), as an indicator of the presence of organic material, and the presence of suspended solids are both significant factors in evaluating the adequacy of sewage treatment, especially as to virus and bacteria elimination. EPA regulations and the discharge permits issued by the Wisconsin Department of Natural Resources for the Jones Island and South Shore plants require that the average daily BOD 5 (see note 35, supra) and suspended solids content of the effluent not exceed 30 milligrams per liter (mg/1) in any 30-day period. Not only were the 30-day average daily limitations frequently violated at Jones Island and South Shore, but also, on occasion, even if these limitations were met, discharges on individual days greatly exceeded the 30 mg/1 limitation. The evidence established that, at temperatures between 40 and 70 degrees Fahrenheit, 90% of the bacteria discharged on any given day will generally “die-off” within two to four days, although they can survive for four to eight days. But, at temperatures between 40 and 50 degrees Fahrenheit, viruses will survive for months; even at 70 degrees, a temperature rarely reached by Lake Michigan except in July and August, viruses will survive for about two weeks. All of the witnesses who testified concerning the transport of pathogens discharged at Milwaukee into Illinois waters agreed that the southerly currents were strong enough and persisted long enough to carry the pathogens into Illinois waters in less than four days. They differed only as to the number of times that this could be expected to occur in a given year. Pathogens discharged at Milwaukee will sometimes be carried into Illinois waters close enough to shore to come in contact with swimmers and to be taken in by water treatment plants. A swimmer can be infected by getting contaminated water into his mouth or nose or on a cut or abrasion on the skin. Drinking water can be contaminated by viruses or bacteria in lake water if a water treatment plant malfunctions because of human error or mechanical breakdown. Furthermore, there was evidence that viruses and bacteria can survive the treatment at a drinking water plant, even in the absence of error or breakdown. If viruses or bacteria contaminate the drinking water supplies, Illinois residents ingesting the water can of course become infected. Defendants estimate that the effluent from Jones Island and South Shore contains about 1,100,000 pounds of phosphorus each year; the phosphorus content of defendants’ raw sewage discharges is unmeasured. The district court found that this constituted a substantial contribution to the accelerated eutrophication of the water in the western in-shore zone of Lake Michigan, within the territorial boundaries of the State of Illinois, and also found that the State of Michigan was injured by accelerated eutrophication, aggravated by defendants’ discharges. V. Sufficiency of the Evidence Supporting the Relief Granted A. Relief Granted by the District Court The district court’s judgment order requires the defendants to eliminate all overflows, defined as any “crossover, bypass, diversion structure, relief structure, pump station or any other device or mechanism by which human fecal waste is discharged directly or indirectly to public streams, rivers or lakes without collection and treatment,” located outside the combined sewer system area by July 1, 1986. As to the 112 combined sewer overflows, the defendants must construct a collection and conveyance system with a storage capacity of 2605 acre-feet by December 31,1989. Any overflow from this collection and conveyance system must receive minimum “treatment” consisting of “bar screen” filtering, followed by “drum screen” filtering, and chlorination. Defendants must either modify existing sewage treatment facilities or construct new facilities to treat all sewage, including that collected in the combined sewer collection and conveyance system, in order to meet the following effluent limitations by December 13, 1986: (1) based on 30 consecutive daily samples, an average of 5 mg/1 suspended solids, provided that no single sample exceed 10 mg/1 suspended solids; (2) based on 30 consecutive daily samples, an average of 5 mg/1 BOD5, provided that no single sample exceed 10 mg/1 BOD5; (3) based on daily samples, a free chlorine residual after 15 minutes exposure using the amperometric test; (4) based on daily grab samples, fecal coliform counts not exceeding /ioo ml; and (5) based on daily sampling, a monthly average of 1 mg/1 phosphorus. The order also provides for evidentiary hearings to secure modifications of the order or to determine whether the provisions of the order have been violated. In any such hearing the defendants must bear the burden of proving by a preponderance of the evidence that the modification is necessary or that any alleged violation of the order did not occur or was excused. B. Overflows That part of the district court’s order requiring defendants to eliminate all overflows outside the combined sewer system by July 1, 1986 and to construct a collection and conveyance system for the combined sewer system that will practically eliminate overflows on the combined sewer system by December 31, 1989 is supported by the evidence and is reasonable. 1. Overflows Outside the Combined Sewer Area There appear to be no provisions in the Act or EPA regulations expressly forbidding the discharge of raw sewage into public waters from overflow points. Yet such a prohibition is at least implicit in the provisions of § 301. It would be senseless to prohibit the discharge of effluent from publicly owned treatment works not meeting the secondary treatment requirements of § 301(b)(1)(B), if raw sewage can nonetheless be discharged at will from overflow points before it reaches the treatment works. The discharge permits that the Wisconsin agency issued for the South Shore and Jones Island treatment plants prohibit, except under very limited' conditions, any “diversion or bypass” of raw sewage at the treatment works. Although the discharge permits do not otherwise prohibit overflow discharges, the permits do require the city commission to “initiate” programs “leading to the elimination or control of all discharge overflow and/or bypass points . .” Under the permits, plans for the elimination or control of overflows were to be submitted to the Wisconsin agency by December 31,1975. It is not clear from the record whether any plans were submitted, or, if they were, what their terms were and what action was taken. In any event, the provisions of these permits appear to have been modified. In July, 1976, the defendant commissions filed an action in a Wisconsin state court against the Wisconsin Department of Natural Resources, the state’s discharge permit issuing agency, challenging the validity of the requirements of the permits issued for South Shore and Jones Island. The state agency answered, asserting the validity of the permit requirements, and filed a counterclaim alleging that the defendant commissions had violated the permit effluent limitations on numerous occasions. The state agency also alleged that under dry weather and wet weather conditions, bypassing and overflowing occur within the sewerage systems of the Commissions and such discharges must either be eliminated or meet secondary treatment standards by July 1, 1977 The state court suit was resolved by a settlement agreement, approved by the court on May 25, 1977, in which the sewerage commissions accepted the requirement that they eliminate dry weather bypasses and overflows on the Main Interceptor System by July 1, 1982, and complete construction of relief sewers by July 1, 1983. While construction of relief sewers and the other construction contemplated in the agreement presumably is intended to mitigate overflows, there is no specific date by which wet weather overflows must be eliminated. The sewerage commissions also agreed to “coordinate” a district-wide effort to “correct” wet weather bypassing and overflows on the separate sewer systems of the municipalities located within the Metropolitan Sewerage District of the County of Milwaukee, see note 33, supra. Under the agreement, any of the 26 municipalities within the district, by adopting a “resolution of commitment to the correction of wet weather related bypassing and overflowing within its sewerage system” becomes subject to the supervision of the commissions, which are required to make sure that all “corrective work” is complete by July 1, 1986. We need not decide whether modification of discharge permits in this manner complies with the procedural requirements of §§ 402(b)(3), (5), (6) or the substantive requirements of §§ 402(b)(1)(A), (B). For our purposes, it is sufficient that the state agency has condemned raw sewage discharges. It is doubtful whether anyone, layman or expert, would argue that the discharge of raw sewage into public waters is a satisfactory alternative to collection and treatment of sewage, even though it may be conceded that it may take time to fund and provide collection and treatment facilities, and therefore the raw sewage discharges may have to be endured for the short term. Donald Wieland, Director of Engineering for the Sewerage Commission of the City of Milwaukee, flatly stated that discharging raw sewage into public waters as a permanent solution to sewage overloads was not “sound sanitary engineering practice”: Q. As a design engineer responsible for designing sewers with adequate hydraulic capacity, do you consider it sound sanitary engineering practice to design and install overflow devices which are intended to permit the discharge of raw sewage as a permanent solution to hydraulic overloads on an interceptor system? A. Certainly not. Similarly, Dale Lundy, a hydraulic and sanitary engineering consultant called by plaintiffs, testified that collection and treatment is “considered preferable” to discharge of raw sewage. Defendants point to nothing in the record that would even suggest that the discharge of raw sewage into public waters is either an acceptable long range solution to the problem of disposing of human wastes or a practice that can be regarded as safe. The “crossover” overflow devices on the city’s so-called “separate” system also fall within this aspect of the court’s order. Rather than discharging raw sewage directly into public waters, the crossover devices dump the sewage into storm sewers which in turn dump it into the public waters. There may or may not be water in the storm sewers when the crossover devices are activated, and therefore the crossover overflow devices may result in discharges of raw sewage into public waters in precisely the same manner as the overflow devices that dump sewage directly into public waters. We note that the discharge permit apparently issued to the City of Milwaukee by the Wisconsin agency, as modified, see note 33, supra, requires the city to “initiate a program leading to the elimination of the sanitary sewer crossovers (gravity) and the electrically operated relief pumps” on the city’s “separate” sanitary sewer system “to assure attainment of all applicable Water Quality Standards.” We have seen that, depending on the efficiency of the treatment, even effluent from a treatment plant may contain pathogens that pose a danger to Illinois residents and phosphorus that contributes to the accelerated eutrophication of the lake. Obviously then untreated sewage poses a greater danger. We therefore affirm the district court’s order to the extent that it requires defendants to eliminate discharges of untreated sewage outside the combined sewer system area. 2. Overflows Within the Combined Sewer Area In considering the city’s combined sewer overflows, it is again appropriate to take as a starting point the provisions of the Act. Although there is no provision expressly prohibiting “combined' sewer overflows,” we think that such a prohibition can be inferred from the general provisions of § 301. For, as noted above, it simply does not make sense to read the statute as authorizing unrestricted discharges of untreated sewage; “dilution” by storm water does not constitute treatment. It seems apparent that the amount of dilution that has taken place when an overflow occurs depends entirely on what the relative volumes of sewage and water in the sewer happen to be at the time of the overflow. The overflow mechanisms do not regulate the amount of dilution or distinguish between pure and diluted sewage. If the total amount of sewage and water introduced into a sewer exceeds its capacity, the excess is discharged into the rivers and the lake; it may be either “diluted” or “undiluted.” That the flow from the combined sewers is supposed to go to the treatment plants suggests that not even the city believes that the dilution in the combined sewers is sufficient to render the discharges harmless. EPA regulations concerning treatment plants that receive sewage from combined sewers recognize that during wet weather it may be difficult for a treatment plant to meet secondary treatment effluent limitations, but those treatment plants are not exempt from the- requirements of the regulations, and “diluted” sewage, like raw sewage, must be treated before being discharged: Secondary treatment may not be capable of meeting the percentage removal requirements . . during wet weather in treatment works which receive flows from combined sewers (sewers which are designed to transport both storm water and sanitary sewage). For such treatment works, the decision must be made on a case-by-case basis as to whether any attainable percentage removal level can be defined, and if so, what that level should be. 40 C.F.R. § 133.03(a). Implicit is a recognition that dilution alone is inadequate to protect the receiving waters. The discharge permit issued to the City of Milwaukee required the city to “initiate a program leading to the attainment of control of overflows from the City’s combined sewer system ... to assure attainment of all applicable Water Quality Standards.” Although the City of Milwaukee was not one of the named plaintiffs in the state court litigation referred to above, the settlement agreement appears to modify this provision and to contemplate “completion of construction [on the combined sewer system] and achievement of applicable water quality standards by July 1, 1993.” Again we need not decide whether a modification accomplished in this way meets the procedural requirements of the Act or whether the terms of the modification meet the substantive requirements of the Act. It is enough that neither Congress nor any agency charged with responsibility under the Act has approved the practice of discharging untreated sewage from a combined sewer system into public waters. The requirements in the district court’s order that the defendants collect and treat the sewage in combined sewers before discharging it directly or indirectly into Lake Michigan is proper in light of the evidence. Defendants concede the feasibility of the completion date requirements. 3. Illinois’ Regulation of Overflows Within Its Own Jurisdiction Defendants attack the overflow elimination provision of the district court’s order on the additional ground that Illinois does not even require elimination of sewage overflows within its own jurisdiction. Defendants cite § 602 of the Illinois Pollution Control Board Rules and Regulations, Chapter 3: Water Pollution. There is precedent, in a case of this kind, for considering the rules of the complaining state as an indication of what is appropriate for the protection of the residents of that state. Missouri v. Illinois, supra, 200 U.S. at 525-526.‘ The argument is, on its face, inapplicable to sanitary sewer overflows since Illinois does prohibit those, Illinois Pollution Control Board Rules and Regulations, supra, § 602(b) (1976); consequently, we interpret defendants’ argument to be that it was improper to order collection and treatment of sewage in the combined sewer system area. Section 602(c) does not prohibit combined sewer overflows, but “all dry weather flows, and the first blush of storm flows” must meet applicable effluent limitations, which for Lake Michigan are comparable to those imposed by the district court, and new combined sewers are prohibited. Id. § 602(c)(1). Combined sewer flows equal to ten times the average “dry weather flow” must receive “primary treatment and disinfection with adequate retention time.” Id., § 602(c)(2). These requirements seem to be comparable to the treatment of ovér-flows from the collection and conveyance system prescribed by the district court. The Illinois regulations further provide that, if necessary to prevent sludge accumulation or oxygen level depression, flows greater than ten times the average “dry weather flow” must be treated by “retention and return to the treatment works or otherwise.” Id., § 602(c)(3). Thus, it appears that defendants’ only complaint based on a comparison with the Illinois regulations relates to the size of the retention facility required by the court. The details of the relief to be granted are in large part matters left to the trial court’s discretion; in any event, the defendants do not provide us with evidence sufficient to justify disagreement with what the court found necessary or evidence sufficient to show that the marginal increase in cost of building a facility of the size required by the district court is significantly greater than the cost of building a facility of the size presumably contemplated by defendants. Furthermore, although Illinois permits some combined sewer overflows, it also, unlike the defendants, requires some treatment. The trial court is not limited by the law of the complaining state with respect to each detail of the relief to be granted. C. Effluent Limitations Neither the minimum effluent limitations prescribed by EPA pursuant to the provisions of the Act nor the effluent limitations imposed by the Wisconsin agency under the National Pollutant Discharge Elimination System limit a federal court’s authority to require compliance with more stringent limitations under the federal common law. Nevertheless, those standards provide guidelines which a court should not ignore. EPA regulations define “secondary treatment” in terms of resulting effluent quality, in part, as follows: (a) Biochemical Oxygen Demand (five-day). (1) The arithmetic mean of the values for effluent samples collected in a period of 30 consecutive days shall not exceed 30 milligrams per liter. (2) The arithmetic mean of the values for effluent samples collected in a period of 7 consecutive days shall not exceed 45 milligrams per liter. (3) The arithmetic mean of the values for effluent samples collected in a period of 30 consecutive days shall not exceed 15 percent of the arithmetic mean of the values for influent samples collected at approximately the same times during the same period (85 percent removal). (b) Suspended Solids. (1) The arithmetic mean of the values for effluent samples collected in a period of 30 consecutive days shall not exceed 30 milligrams per liter. (2) The arithmetic mean of the values for effluent samples collected in a period of 7 consecutive days shall not exceed 45 milligrams per liter. (3) The arithmetic mean of the values for effluent samples collected in a period of 30 consecutive days shall not exceed 15 percent of the arithmetic mean of the values for influent samples collected at approximately the same times during the same period (85 percent removal). 40 C.F.R. § 133.102. As noted above, for publicly owned treatment works the Act requires no more than secondary treatment until July 1, 1983, when they must implement the “best practicable waste treatment technology over the life of the [treatment] works.” § 201(g)(2)(A); see § 301(b)(2)(B). While point sources must comply with any more stringent requirements of the states in which they are located, Wisconsin does not appear to have adopted any more stringent limitations; the discharge permits issued to the defendants in this case do not impose any more stringent limitations than those in EPA’s regulations. Both the South Shore and Jones Island plants must meet the following conditions under their discharge permits: (1) based on daily samples, a monthly average of 30mg/l BOD5 and a weekly average of 45mg/l BOD5, provided that neither the monthly nor the weekly average ever exceed 15% of the average BOD5 content of the influent during the same period (85% removal); (2) based on daily samples, a monthly average of 30mg/l suspended solids and a weekly average of 45mg/l suspended solids, provided that neither the monthly nor the weekly average ever exceed 15% of the average suspended solids content of the influent during the same period (85% removal); (3) based on twice weekly “grab samples,” a monthly average fecal coliform count of 200/100ml and a weekly average fecal coliform count of 400/100ml; (4) based on daily samples, a monthly average of lmg/1 phosphorus; and (5) monitoring of both total residual chlorine and available “free” chlorine in the effluent, but no specific requirements. All of the effluent limitations imposed by the district court, except the phosphorus limitation, are significantly more stringent than those prescribed by EPA or in the discharge permits: in lieu of 30mg/l BOD5 and suspended solids, the district court requires 5mg/l; in lieu of 200 fecal coliform cells per 100ml, the district court requires 40/100ml; in lieu of the monitoring requirement for chlorine, the district court requires a free chlorine residual 15 minutes after exposure. Further, as to BOD5 and sus-pen4ed solids, the district court imposes an absolute maximum of 10mg/l instead of the variable 85% removal requirement in the EPA regulations and the discharge permits. These effluent limitations imposed by the district court all relate to the hazard presented to Illinois residents by Milwaukee’s discharge of sewage containing pathogens. Although aware that these limitations could be consistently met only by constructing what are referred to as “advanced waste treatment” plants, the court found that such treatment was necessary to protect Illinois residents from the danger presented by Milwaukee’s discharges. We are unable to conclude, after a careful examination of the evidence cited by plaintiffs to justify the limitations imposed, that this evidence was sufficient. We recognize that once liability has been established, a trial court has broad authority to fashion appropriate relief. This rule is particularly applicable in an area of law where the appropriate relief will invariably depend on the circumstances of each case. See, e. g., Washington v. General Motors Corp., 406 U.S. 109, 115-116, 92 S.Ct. 1396, 31 L.Ed.2d 727 (1972). Nevertheless, a court, unlike a legislature or an administrative agency, is not free to rest solely upon what it thinks desirable; there must be evidence to support its conclusion that the relief granted is necessary to protect the complaining party from harm. To support the 5 mg/1 BOD5 and suspended solids limitations imposed by the district court, Illinois relies on the testimony of one witness who asserted that even at 30mg/l suspended solids “you are going to have a lot of organics tied up with solids that is going to use up your chlorine, and that the chlorine can’t evén get into.” Further, Illinois cites the general testimony that organic matter and suspended solids interfere with effective chlorination and therefore should be reduced as much as possible. Illinois also relies on the testimony of one witness that the kind of treatment required to meet the 5 mg/1 standard is preferable to the kind of treatment now used by the defendants. And finally, Illinois points to evidence that one of the defendants’ consultant sanitary engineers recommended treatment comparable to that required to meet the 5 mg/1 standard, that three cities have been required to meet similar limitations, and that several cities have voluntarily decided to modify their own treatment facilities in ways similar to that which would be required under the district court’s order. The evidence shows that suspended solids and organic matter interfere with chlorination, and therefore that there is some correlation between suspended solids and BODs and effective chlorination. The evidence does not, however, show how much more effective chlorination would be at 5mg/l suspended solids and BOD5 than at 30mg/l suspended solids and BOD5; the difference may be significant or it may be de minim-is That a few cities have adopted the more stringent standards is hardly enough to prove that those standards are necessary here, especially when the persons to be protected are many miles down the lakeshore from the discharge points. Cf. Comptroller General of the United States, “Report to Congress: Better Data Collection and Planning is Needed to Justify Advanced Waste Treatment Construction” (1976) (pointing out that several cities began construction of advanced waste treatment facilities without adequate consideration of the expected costs and benefits of such facilities). Our difficulty with the evidence reviewed above is that it consists merely of conclusions of the experts and does not explain why the particular standards are necessary to protect the health of Illinois residents. We are asked to accept the conclusions on faith. It is difficult for us to see how the opinion of an expert can be intelligently appraised unless it is supported by reasons. This is especially so when the opinion is offered to support effluent limitations markedly lower than (a) those established by EPA in its regulations, (b) those established by the state permit authority with the duty of protecting residents in the immediate environs of the discharges; and (c) those established by the complaining state itself for waters other than Lake Michigan. The record is conspicuously silent as to the reasons these less stringent standards were found adequate to protect persons in the immediate environs of the discharges by experts who were presumably as dedicated to the protection of public health and the environment as those on whose conclusions plaintiffs rely, and why those reasons are inapplicable here, especially when the discharges occur at least 25 miles from any of the persons to be protected. In short, plaintiffs point to nothing in the record, and we have found nothing, to connect the effluent limitations imposed by the district court with the protection of Illinois residents. If enforcement of the limitations imposed in the discharge permits proves inadequate to protect Illinois residents, then more stringent limitations may become necessary. But on the record before us, we cannot sustain the district court’s order in this respect. Also relevant to this aspect of the remedy is Congress’ treatment of publicly-owned treatment facilities in the 1972 and 1977 amendments to FWPCA. Secondary treatment facilities, which are not capable of meeting the 5 mg/1 limitations, are permitted under § 301(b)(1)(B) until July 1, 1983, when “the best practicable waste treatment over the life of the works” becomes the requirement. Although Congress did not attempt to answer the public health questions, leaving them to EPA and state agencies acting under EPA’s supervision, the provisions of the Act are at least an indication of Congressional reluctance to risk pushing municipalities beyond the limits of their resources. The 1977 amendments, summarized above, show a deepening concern on this score. Congress’ position in the Act does not, as we have held, mark the limits of our power in this common law nuisance action, but the policy underlying that position, to which we should give some deference, is at least a reason not to allow the nature of the action to cause a relaxation of the requirements of evidentiary foundation that would normally be observed in other kinds of actions. It is not clear whether the fecal coliform limitation and the free chlorine residual requirement imposed by the district court can be met with secondary treatment. In any event, the record support for these limitations is as deficient as it is for the suspended solid and BOD5 limitations, and we are provided with no explanation of why such limitations were not included in the NPDES permits for the plants and the federal regulations. Our treatment of the effluent limitations imposed in the district court’s order is not inconsistent with our treatment of the overflow requirements of the order. First, and we think most important, the evidence presented supports the district court’s finding that the defendants’ discharges of raw sewage, whether diluted or not, pose a significant risk of injury to Illinois residents. Raw sewage contains vastly higher concentrations of pathogens than treated sewage. Millions of gallons of raw sewage are dumped into the water each year from the 239 overflow points on the defendants’ sewage systems, most frequently during wet weather, but also during dry weather. Lake currents can and do sometimes carry the pathogens into Illinois waters close to shore. Second, no one even attempts to justify such discharges as harmless or insignificant. As we have said, it is arguable that the Act itself prohibits discharges of raw sewage. The Wisconsin agency has taken steps to eliminate some overflows and to “correct” others although giving the defendants a longer time to take the necessary action than did the district court. But as stated above the defendants have conceded that compliance with the deadlines imposed by the court is feasible. On the other hand, the evidence supporting the effluent limitations is weak, at best. They are more stringent than those required by Congress, EPA, and the Wisconsin discharge permit issuing agency. And there is no evidence as to why the limitations deemed adequate to protect the inhabitants in the vicinity of the discharges are inadequate to protect the residents of Illinois who are at least 25 miles away. The phosphorus limitation imposed by the district court can be achieved using secondary treatment; an identical limitation is prescribed in the defendants’ discharge permits. We affirm the district court’s order to the extent that it requires the elimination of all sewage overflows and imposes a 1 mg/1 phosphorus effluent limitation. We reverse the court’s order insofar as it imposes suspended solids, BOD5, fecal coliform, and free chlorine residual effluent limitations more stringent than those prescribed in defendants’ discharge permits. The case is remanded to the district court with directions to modify the injunctive order in conformity with the rulings of this court. Affirmed in part, Reversed and remanded in part. . For practical purposes, the two commissions may be regarded as one. See also n. 33, infra. The chief administrative officer for both is the same man; he also serves as the secretary for both commissions. The county commission has no employees other than thé chief administrative officer and secretary referred to and uses the staff of the city commission when • necessary. In this opinion we differentiate between the two only when the difference is significant. . Illinois also named three other Wisconsin cities as defendants in this case: Kenosha, Racine, and South Milwaukee. They are not involved in this appeal. After judgment was entered the County of Milwaukee moved to intervene as an indispensable party under Rule 19(b), Federal Rules of Civil Procedure (Fed.R.Civ.P.). The motion was denied; this court affirmed, without written opinion. The Supreme Court denied certiorari. — U.S. —, 99 S.Ct. 1423, 59 L.Ed.2d 634 (1979). . If Congress had chosen to authorize nationwide service of process, no minimum contacts issue would be raised. See, e. g., Fitzsimmons v. Barton, 589 F.2d 330, 333 (7th Cir. 1979); Mariash v. Morill, 496 F.2d 1138, 1143 & n. 6 (2d Cir. 1974). Congress has not done so and Fed.R.Civ.P. 4(e) makes jurisdiction dependent on the long-arm statute or rule of court of the state in which the district court is held; therefore we are required to determine whether defendants’ contacts with Illinois are sufficient to support the exercise of in personam jurisdiction. . See, e. g., French v. Clinchfieid Coal Co., 407 F.Supp. 13, 16-17 n. 11 (D.Del.1976) (Caleb Wright, J.); Hasburgh v. Executive Aircrañ Co., 35 F.R.D. 354, 355 (W.D.Mo.1964); see generally 1 Moore’s Federal Practice § 0.142[2. —1], 1368-1369 & nn. 40-11 (1978); Wright, Law of Federal Courts 158 (2d ed. 1970); Wright, Miller & Cooper, 15 Federal Practice and Procedure § 3822 (1976). . There is some debate as to whether there ought to be a uniform rule of law in federal courts governing the question of whether an action is “local” or “transitory.” See, e. g., French v. Clinchfield, supra, 407 F.Supp. at 16-17 n. 11; Wright, Miller & Cooper, supra, § 3822 at 129-130; 1 Moore’s Federal Practice, supra, at 1368-1369 & n. 40. Illinois v. Milwaukee, supra, 406 U.S. 108 n. 10, 92 S.Ct. 1385, can also be understood as resolving this debate in favor of a uniform federal rule, at least in federal common law nuisance actions, and as indicating that such actions should be treated as “transitory.” Under either interpretation of the language, § 1391(b) is applicable and venue was proper. . That provision states, The Supreme Court shall have original and exclusive jurisdiction of: (1) All controversies between two or more States; .... . That provision states, The Supreme Court shall have original but not exclusive jurisdiction of: . . . (3) All actions . . by a State against the citizens of another State . . That provision states, The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy . . . arises under the . laws ... of the United States. . For the provisions of the statute as amended at the time of the Court’s decision see 33 U.S.C. § 1151, et seq. (1970). . See S.Rep.No.92-414, reprinted in [1972] U.S.Code Cong. & Admin.News, pp. 3668, 3671-3674 (1972); see also Note, “Federal Common Law in Interstate Water Pollution Disputes,” 1973 U.Ill.L.F. 141, 143-144 & nn. 12-14. . Sections of the 1972 Act (Pub.L.No.92-500, 86 Stat. 816) are referred to in this opinion by their designations in the Statutes at Large. The parallel United States Code citations for the sections to which reference is made are as follows: Section 101 — 33 U.S.C. § 1251 Section 201 — 33 U.S.C. § 1281 Section 212 — 33 U.S.C. § 1292 Section 301 — 33 U.S.C. § 1311 Section 304 — 33 U.S.C. § 1314 Section 309 — 33 U.S.C. § 1319 Section 402 — 33 U.S.C. § 1342 Section 502 — 33 U.S.C. § 1362 Section 505 — 33 U.S.C. § 1365 Section 510 — 33 U.S.C. § 1370 Section 511 — 33 U.S.C. § 1371 . “Point source” is defined as “any discernible, confined and discrete conveyance, . from which pollutants are or may be discharged.” § 502(14). . For purposes of “Title II — Grants for Construction of Treatment Works,” treatment works are defined as “any devices and systems used in the storage, treatment, recycling, and reclamation of municipal sewage or industrial wastes of a liquid nature to implement section 201 of this Act [which is designed to encourage the development of the “best practicable waste treatment” over the life of the treatment work] . . . [and] any other method or system for preventing, abating, reducing, storing, treating, separating, or disposing of municipal waste, including storm water runoff, or industrial waste, including waste in combined storm water and sanitary sewei systems.” §§ 212(2)(A), (B). Although “treatment works” is not defined for purposes of “Title III — Standards and Enforcement,” the definitions provided in § 212 provide an indication of what may have been intended. We recently noted that “[a]n earlier specific definition may properly color a subsequent use of the same words without redefinition,” quoting from Kent Mfg. Corp. v. Commissioner, 288 F.2d 812, 815 (4th Cir. 1961). Nachman Corp. v. Pension Benefit Guaranty Corp,, 592 F.2d 947, 952 n. 6 (7th Cir.), cert. granted, - U.S. -, 99 S.Ct. 2881, 61 L.Ed.2d 310 (1979). . “EPA” in this opinion includes the administrator and the agency. . Section 510 provides, Except as expressly provided . . . nothing in this Act shall (1) preclude or deny the right of any State or political subdivision thereof or interstate agency to adopt or enforce (A) any standard or limitation respecting discharges of pollutants, or (B) any requirement respecting control or abatement of pollution; except that if an effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance is in effect under this Act, such State or political subdivision or interstate agency may not adopt or enforce any . . . less stringent ... effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard or standard of performance . . .; or (2) be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to waters ... of such States. . This system replaced the permit system formerly administered by the Army Corps of Engineers under the Act of 1899, 30 Stat. 1152, 33 U.S.C. § 407. United States Steel Corp. v. Train, 556 F.2d 822, 831 & n. 7 (7th Cir. 1977); American Meat Institute v. EPA, supra, 526 F.2d at 446. . Section 402(d)(2) provides that, No permit shall issue (A) if the Administrator within ninety days of his notification under subsection (b)(5) of [402] objects in writing to the issuance of such permit, or (B) if the Administrator within ninety days of the date of transmittal of the proposed permit by the State objects in writing to the issuance of such permit as being outside the guidelines and requirements of this Act. Comparison of §§ 402(d)(2)(A) and (B) suggest that, although vetoes must usually be based on a violation of the effluent limitations imposed under the Act, there is no such requirement where the interests of a second state are involved. But cf. § 505(h) (authorizing governor’s suit against Administrator of EPA, but only for failure to enforce effluent limitations imposed under the Act against a point source in another state resulting in harm to waters in governor’s state) quoted in note 19, infra; see also § 505(a) (citizens’ suits to enforce limitations imposed under the Act). . The Administrator’s general veto authority is expressly lirfiited to cases in which the minimum limitations imposed under the Act are violated. § 402(d)(2)(B). The Senate version of the Act, S. 2770, provided that no permit could be issued by any state agency “until the Administrator is satisfied that the conditions imposed by the State meet the requirements of this Act.” S. 2770, 92d Cong., 1st Sess. § 402(d)(2) (1971), reprinted in 117 Cong.Rec. 38865, 38883 (1971); Library of Congress, A Legislative History of the Water Pollution Control Act Amendments of 1972, 1534, 1690 (1973). The House version of the Act, H.R. 11896, specifically rejected the permit-by-permit review approach of S. 2770 and only authorized the Administrator to veto those permits under which the waters of a second state might be affected. H.R. 11896, 92d Cong., 2d Sess. § 402(d)(2) (1972), reprinted in 118 Cong.Rec. 10804, 10824 (1972); 1 Legis.Hist., supra, 893, 1058-1059. In part, the Act incorporates the provisions of both S. 2770 and H.R. 11896. See note 17, supra. The House provision was intended as a state-permit analogue to the provisions of H.R. 11896, supra, § 401, which requires every applicant for a federal license to secure a statement from the appropriate state to the effect that no applicable effluent limitation will be violated by the activity for which the license is sought. See H.R.Rep.No.92-911, 92d Cong., 2d Sess., reprinted in Legis.Hist., supra, 753, 808-814. Concerning H.R. 11896, § 402(d)(2), the House Committee explained: The committee has included this procedure to protect States which might otherwise be affected by the issuance of a permit in a second State. This is similar to the safeguards given to States in the certification procedure under section 401. However, since permits granted by States under section 402 are not Federal permits — but State permits — the certification procedures are not applicable. Id. at 814. As noted above the House specifically rejected the permit-by-permit review approach of the Senate bill, in favor of giving the individual states “maximum responsibility for the permit program.” See id. See also the discussion of the 1977 amendments to the veto provisions, infra. For more detailed discussions of the legislative history of the veto provisions see Save the Bay v. Administrator of the Environmental Protection Agency, 556 F.2d 1282, 1284-1287 (5th Cir. 1977); Mianus River Preservation Committee v. Administrator of EPA, 541 F.2d 899, 906-909 (2d Cir. 1976). . Also, the governor of a state may file a civil action against the Administrator “where there is alleged a failure of the Administrator to enforce an effluent standard or limitation under this Act the violation of which is occurring in another State and is causing an adverse effect on the public health or welfare in his State, or is causing a violation of any water quality requirement in his State.” § 505(h). . Clean Water Act of 1977, Pub.L.No.95-217, 91 Stat. 1566 (to be codified 33 U.S.C. §§ 1251, et seq.). . The law of Wisconsin is in accord. See, e. g., Winchell v. Waukesha, 110 Wis. 101, 109, 85 N.W. 668, 670 (1901) (“The great weight of authority, American and English, supports the view that legislative authority to install a sewer system carries no implication of authority to create or maintain a nuisance . . . . If such nuisance be created, the same remedies may be invoked as if the perpetrator were an individual.”); Costas v. City of Fond du Lac, 24 Wis.2d 409, 415-416, 129 N.W.2d 217, 220-221 (1964) (operation of sewage plant in accord with state specifications, orders, and regulations is no defense in nuisance action). For other state cases to the same effect, see, e. g., People of the State of California v. Los Ange-les, 160 Cal.App.2d 494, 505-506, 325 P.2d 639, 645 (Ct.App.1958); cases cited in Annotation, “Sewage Disposal Plant as Nuisance,” 40 ALR 2d 1177, 1182-1186 (1955), Later Case Service, 40 ALR 2d 77, 77 (1969), Later Case Service Supp. 42, 42 (1978); cases cited in Annotation, “Right to, and Propriety of Injunction Against Nuisance for Discharge of City Sewage,” 77 L.Ed. 1213, 1227-1231 (1933); cases cited in Davis, “Theories of Water Pollution Litigation,” 1971 Wis.L.Rev. 738, 768 n. 138, 771 n. 148 (1971); cf. Venuto v. Owens Coming Fiberglass, 22 Cal.App.3d 116, 128-129, 99 Cal.Rptr. 350, 358-359 (1971) (air pollution). . See, e. g., Moragne v. States Marine Lines, 398 U.S. 375, 390-393, 406-408, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970); Landis, “Statutes and the Sources of Law,” Harvard Legal Essays 213 (1934), reprinted in 2 Harv.J.Legis. 7, 12-19, 21-22 (1965); Page, “Statutes as Common Law Principles,” 1944 Wis.L.Rev. 175, 186-211; Schaefer, “Precedent and Policy,” 34 U.Chi.L.Rev. 3, 20-22 (1966); Stone, “The Common Law in the United States,” 50 Harv.L.Rev. 4, 14-15 (1936); Traynor, “Statutes Revolving in Common-Law Orbits,” 17 Cath.U.L.Rev. 401, 403-408, 412-417, 421-424 (1968). . Comparison of the treatment levels demanded of publicly owned treatment works and those demanded of all other point sources suggests that Congress was of the view that publicly owned treatment works should be subject to less stringent standards than other point sources. Point sources other than publicly owned treatment works were required to implement the “best practicable control technology currently available,” as determined by EPA, by July 1, 1977. § 301(b)(1)(A). Senator Muskie, the “principal author of the Act,” see American Meat Institute v. EPA, supra, 526 F.2d at 451, expressed the view that although EPA had authority to define “best practicable” as “the equivalent of secondary treatment for industry,” more stringent requirements might also be imposed, 1 Legislative History of the Water Pollution Control Act Amendments of 1972 167-170 (1973), quoted in American Meat Institute v. EPA, supra, 526 F.2d at 453. The 1972 Act required point sources other than publicly owned treatment works to implement “best available treatment” by 1983, § 301(b)(2)(A); the 1977 amendments modified this provision to require “best conventional treatment” for pollutants identified by EPA as “conventional” by July 1, 1984, and “best available treatment” for other pollutants, no later than July 1, 1987. § 42, 91 Stat. 1582-1583, as amended, 33 U.S.C.A. §§ 1311(b)(2)(A), (E), (F). . EPA has not vetoed the permits issued by the Wisconsin agency. See notes 17 and 18, supra, and accompanying text. Before filing this action, Illinois invoked the enforcement procedures of the pre-1972 Act, see, Note, “Federal Common Law in Interstate Disputes,” supra, 1973 U.Ill.L.F. at 144 & nn. 17-19, but apparently chose not to pursue the remedy provided in § 402(b)(5) and did not attempt to have EPA veto the permits issued to the defendants under § 402(d)(2)(A). . Although the Administrator’s power to veto permits that will result in harm to the waters of a second state provides some protection, as noted above, hi's authority may be limited to those cases in which the complaining state can point to some applicable effluent limitation or water quality standard that will be violated. Furthermore, the Administrator’s power to waive review of permits issued to any category of point sources may render any protection that is provided by the veto provisions illusory. §§ 402(d)(3), (e), (f). . For state law cases to the same effect see, e. g., Green v. Smith, 231 Ark. 94, 96, 328 S.W.2d 357, 359 (1959); Delaware Optometric Association v. Sherwood, 35 Del.Ch. 507, 511, 122 A.2d 424, 427 (1956); City of Pana v. Central Washed Coal Co., 260 Ill. 111, 122-123, 102 N.E. 992, 997 (1932); City of Chicago v. Commonwealth Edison Company, 24 Ill.App.3d 624, 632, 321 N.E.2d 412, 418 (1974); Harden Chevrolet v. Pickaway Grain Co., 27 Ohio Ops. 144, 147, 194 N.E.2d 177, 180 (Ct.C.Pl.Ohio 1961); Wade v. Fuller, 12 Utah 2d 299, 301, 365 P.2d 802, 804 (1961). . For state law cases using this balancing test, see, e. g., Davis, “Theories of Water Pollution Litigation,” 1971 Wis.L.Rev. 738, 766-767 n. 130; see also Harrison v. Indiana Auto, supra, 528 F.2d at 1123 (diversity case). Wisconsin courts apparently do not use the test. Davis, supra, at 767-768 n. 134. . See also Missouri v. Illinois, supra, 180 U.S. at 248, 21 S.Ct. 331. . The complementary part of the accommodation was that the Court imposed on itself “the duty of applying only legal principles ‘which [it] is prepared deliberately to maintain against all considerations on the other side . . ” Id. 401 U.S. at 501, 91 S.Ct. at 1011. . Although federal law governs, we note that some state courts have also adopted the preponderance standard in nuisance cases. See, e. g., City of Northlake v. City of Elmhurst, 41 Ill.App.2d 190, 197, 190 N.E.2d 375, 379 (1963); Iowa v. Miller, 250 Iowa 1369, 1373, 98 N.W.2d 859, 860 (1959); Findley Lake Property Owners v. Town of Mina, 31 Misc.2d 356, 154 N.Y.S.2d 775, 795 (N.Y.Sup.Ct.1956); Welborn v. Page, 247 S.C. 554, 563, 148 S.E.2d 375, 379 (1966); see also Boiler v. Texas Eastern Transmission, 87 F.Supp. 603, 605 (E.D.Mo.1949) (diversity case). . In an unpublished order filed with this opinion we discuss the evidentiary support for the district court’s findings of fact in detail. Since this factual discussion is of little precedential value, we omit it from this opinion in favor of a short summary. See Circuit Rule 35. . Enteroviruses, sometimes referred to as en-teric viruses, are those that inhabit the gas-troenteric tract of human beings. Many of these viruses are pathogenic, causing diseases such as polio, pleurodynia, myocarditis, meningitis, and encephalitis. . Both of the defendant commissions act as agents of the Metropolitan Sewerage District of the County of Milwaukee, a municipal corporation that holds title to all property acquired by either commission but is not a defendant in this case. The city commission is responsible for “disposal of the sanitary and industrial sewage generated within the City of Milwaukee and to this end has established and maintained a system of intercepting sewers within the City and operates the Jones Island and South Shore treatment plants; . . . .” The county commission is responsible for “collection and transportation of sanitary and industrial sewage from outside . . Milwaukee but within the service area of the Metropolitan Sewerage District . for disposal at the Jones Island and South Shore treatment plants, all subject to approval by the City Commission; . .” See generally Wis.Stat.Ann. § 59.-96(6) (West). The City of Milwaukee seems to be solely responsible for the sewers within its boundaries, other than the intercepting sewers. There are 18 bypass points and 31 overflow points on the Metropolitan (or Main) Interceptor System, which is the network of sanitary sewers in the Milwaukee metropolitan area that carries sewage to the Jones Island and South Shore treatment plants. Sewage generated in the 26 municipalities within the area first flows into a “lateral sewer” and from there into “local collector sewers,” which connect with the Metropolitan Interceptor System. There are 78 overflow points (called “crossovers”) on Milwaukee’s sanitary sewer system and 112 overflow points on the city’s combination storm water and sanitary sewer system (called combined sewer overflows). . South Shore effluent is discharged into Lake Michigan, but Jones Island effluent is discharged into the Milwaukee Harbor and from there flows into Lake Michigan. . Biochemical oxygen demand (BOD) is an “index of the biodegradable organics present in the effluent.” Standard Methods for the Examination of Water and Wastewater, 513, 544 (14th ed. 1975). BOD is generally “measured over a five-day period,” American Meat Institute v. EPA, supra, 526 F.2d at 447, hence the abbreviation BOD 5. . As the term suggests, “suspended solids” are “particles of organic and inorganic matter suspended in the water or floating on its surface.” American Meat Institute v. EPA, supra, 526 F.2d at 447. . Chlorine, contained in hypochlorous acid, is one of the most common disinfectants used in sewage treatment and is the only disinfectant used at either Jones Island or South Shore. Ammonia or nitrogen in organic material reacts with chlorine to form compounds that are either ineffective or less effective than hypochlo-rous acid as viricides and bactericides. Viruses or bacteria embedded in suspended solids, organic or inorganic, will be protected from effective chlorination. . Both EPA regulations and the discharge permits impose seven-day daily average BOD 5 and suspended solids limitations of 45 mg/1. We note that on some occasions the defendants’ individual day discharges absolutely precluded meeting the seven-day daily average. . “Eutrophication” is a natural process, and refers to the gradual increase of nutrient concentration in a body of water, which in turn causes increasing concentrations of phytoplankton and other living organisms. Man’s nutrient inputs may, however, accelerate the evolution. Liminologists regard phosphorus as a “controlling element” in the process. Since phosphorus is necessary to support the growth of phytoplankton, limiting phosphorus imposes an upper limit on the external manifestations of eutrophication, which include reduction of clarity and oxygen content, production of obnoxious odors, and reduction of the quality of drinking water supplies. . An “acre-foot” is “the volume that would cover one acre to a depth of one foot.” Webster’s Third New International Dictionary (unabridged) 19 (1971). . See also §§ 212(2)(A), (B), quoted in note 13, supra; § 70, 91 Stat. 1608, as amended, 33 U.S.C.A. § 1375(c); S.Rep.No.95-370, supra, at 81, reprinted in [1977] U.S.Code Cong. & Admin.News, supra, at 4406. . As to the significance of any dilution that might occur in the storm sewers see the discussion of combined sewer overflows, infra. . See also the expression of concern about combined sewer overflows in the Senate committee report accompanying the 1977 amendments, quoted supra; see generally the definition of treatment works, including “waste in combined storm water . . . sewer systems.” § 212, quoted supra, note 13. . “Where, as here, the plaintiff has sovereign powers, and deliberately permits discharges similar to those of which it complains, it not only offers a standard to which the defendant has the right to appeal, but, as some of those discharges are . . [at points where they could cause the injury complained of], it warrants the defendant in demanding the strictest proof that the plaintiff’s own conduct does not produce the result, or at least so conduce to it, that courts should not be curious to apportion the blame.” 200 U.S. at 525-526, 26 S.Ct. at 270. . Defendants point to one place in Illinois where sewage that has not been fully treated may be discharged into Lake Michigan, viz., Waukegan. At present about twice a year and “ultimately about once a year” some sewage that has only received treatment consisting of 10 hours of sedimentation and chlorination will be discharged into Lake Michigan. This discharge appears to be in violation of Illinois water pollution regulations, and therefore provides little support for defendants’ contention. . The Illinois Pollution Control Board Rules and Regulations require all effluents discharged into Lake Michigan to meet a 5 mg/liter suspended solids standard and a 4 mg/liter BOD5 standard, Ill. Pollution Control Board Regulations, supra, § 404(d). . Cf. Milliken v. Bradley, 433 U.S. 267, 280, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977) (“[L]ike other equitable remedies, the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation. . . . The remedy must therefore be related to ‘the condition alleged to offend the Constitution . . . .’ ”). . We only summarize the evidence in this opinion; the evidence relied on by Illinois is discussed in detail in the unpublished order filed with this opinion. See note 31, supra. . Wellings testified that tests had failed to demonstrate any viruses in effluent containing only 5 Jackson Turbidity Units per liter. But Wellings’ work focused primarily on the virus content of effluent from treatment facilities and not on removal efficiencies. For the purpose of determining whether significant benefits will result from reducing solids and BOD5 from 30 mg/1 to 5 mg/1, it is not enough to know that tests have shown viruses in effluent from a plant designed to meet the 30 mg/1 standard and similar tests have failed to show viruses in a plant designed to meet the 5 mg/1 standard. Nor is it enough to take random influent samples and random effluent samples, for the virus content of the sewage necessarily varies. Virus content in the influent may be much more significant than the particular solids or BOD5 level the plant is designed to achieve. Furthermore, the flow rates at the time the tests are conducted are important, for it is virtually meaningless to say that a plant designed to meet the 5 mg/1 standard performs better than an overloaded plant designed to meet the 30 mg/1 standard. . While Wellings, who comes the closest to providing evidentiary support for the suspended solids limitations the court imposed, testified that “the problem with 30 milligrams per liter is you are going to have a lot of organics tied up with solids that is going to use up your chlorine, and that the chlorine can’t even get into,” and there would “still” be “a problem with disinfection,” she did not say the same would be true of any figure between thirty and five. She went on to say that she did not “know how she would equate Jackson Turbidity Units [on which her relevant experience was based] with milligrams, . . because you would have to know size, shape and all that, source, because of the test itself,” and then said 5 mg/1 “would be well in the ball park,” and she “wouldn’t want any more than five.” This is a speculative and uncertain basis for the court’s implied conclusion that effluent limitations specifically adopted by EPA and the Wisconsin agency are insufficient to protect the health of people more than 25 miles from the discharge points. See also note 49, supra. . Illinois Pollution Control Board Rules and Regulations; supra, § 404. . In the statement of facts contained in Illinois’ first brief we were told: “Not only does sewage provide the basic element of phosphorus [which is necessary for eutrophication], but also it contains a whole series of nutrients . ‘a very rich nutrient broth’ for aquatic plant growth (Tr. 2889).” Illinois does not, however, attempt to sustain the effluent limitations imposed by the district court on this basis. Indeed, it is not even clear that this “fact” is relevant to the effluent limitations. There does not appear to be any evidence as to the relative “nutrient” content of effluent from treatment works designed to meet the 30 mg/1 suspended solids and BODs standards and those designed to meet the 5 mg/1 standards. Presumably, the nutrient content of effluent from a plant meeting the 5 mg/1 standards is lower than that of a plant meeting the 30 mg/1 standards. But whether the difference is significant with respect to eutrophication of Lake Michigan is not clear. . Plaintiff also relies on Illinois statutory and common law. The district court indicated that under any of the asserted grounds for relief the result would be the same. But it is federal common law and not state statutory or common law that controls in this case. Illinois v. Milwaukee, supra, 406 U.S. at 107 & n. 9, 92 S.Ct. 1385, and therefore we do not address the state law claims. . In addition we note that Illinois’ general effluent standard fecal coliform limitation is 400/100ml. See Illinois Pollution Control Board Rules and Regulations, supra, § 405. The “water quality” fecal coliform limitation for Lake Michigan is 20/100ml. Ill.Pollution Control Board Rules and Regs., supra, § 206(d). For the effect of a more stringent water quality limitation than effluent limitation see id, § 201(a). There does not appear to be any effluent limitation specifically requiring a chlorine residual, either “free” or total. . Illinois’ phosphorus effluent standard is 1 mg/1; its water quality standard for Lake Michigan is .007 mg/1. See Illinois Pollution Control Board Rules and Regulations, supra, §§ 407, 206(c).

Adamo Wrecking Co. v. United States

Mr. Justice Rehnquist delivered the opinion of the Court. The Clean Air Act authorizes the Administrator of the Environmental Protection Agency to promulgate “emission standards” for hazardous air pollutants “at the level which in his judgment provides an ample margin of safety to protect the public health.” § 112 (b)(1)(B), 84 Stat. 1685, 42 U. S. C. § 1857c-7 (b)(1)(B). The emission of an air pollutant in violation of an applicable emission standard is prohibited by § 112 (c)(1)(B) of the Act, 42 U. S. C. § 1857c-7 (c)(1)(B). The knowing violation of the latter section, in turn, subjects the violator to fine and imprisonment under the provisions of § 113 (c)(1)(C) of the Act, 42 U. S. C. § 1857c^8 (c)(1)(C) (1970 ed., Supp. V). The final piece in this statutory puzzle is § 307 (b) of the Act, 84 Stat. 1708, 42 U. S. C. § 1857h-5(b) (1970 ed., Supp. V), which provides in pertinent part: ‘ “(1) A petition for review of action of the Administrator in promulgating . . . any emission standard under section 112 .. . may be filed only in the United States Court of Appeals for the District of Columbia. . . . Any such petition shall be filed within 30 days from the date of such promulgation or approval, or after such date if such petition is based solely on grounds arising after such 30th day. “(2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement.” It is within this legislative matrix that the present criminal prosecution arose: Petitioner was indicted in the United States District Court for the Eastern District of Michigan for violation of § 112 (c)(1)(B). The indictment alleged that petitioner, while engaged in the demolition of a building in Detroit, failed to comply with 40 CFR § 61.22 (d) (2) (i) (1975). That regulation, described in its caption as a “National Emission Standard for Asbestos,” specifies procedures to be followed in connection with building demolitions, but does not by its terms limit emissions of asbestos which occur during the course of a demolition. The District Court granted petitioner’s motion to dismiss the indictment on the ground that no violation of § 112 (c) (1) (B), necessary to establish criminal liability under §113 (c)(1)(C), had been alleged, because the cited regulation was not an “emission standard” within the meaning of § 112 (c). The United States Court of Appeals for the Sixth Circuit reversed, 545 F. 2d 1 (1976), holding that Congress had in § 307 (b) precluded petitioner from questioning in a criminal proceeding whether a regulation ostensibly promulgated under § 112 (b)(1)(B) was in fact an emission standard. We granted certiorari, 430 U. S. 953 (1977), and we now reverse. I We do not intend to make light of a difficult question of statutory interpretation when we say that the basic question in this case may be phrased: “When is an emission standard not an emission standard?” Petitioner contends, and the District Court agreed, that while the preclusion and exclusivity provisions of § 307 (b) of the Act prevented his obtaining “judicial review” of an emission standard in this criminal proceeding, he was nonetheless entitled to claim that the administrative regulation cited in the indictment was actually not an emission standard at all. The Court of Appeals took the contrary view. It held that a regulation designated by the Administrator as an “emission standard,” however different in content it might be from what Congress had contemplated when it authorized the promulgation of emission standards, was sufficient to support a criminal charge based upon § 112 (c), unless it had been set aside in an appropriate proceeding commenced in the United States Court of Appeals for the District of Columbia Circuit pursuant to § 307 (b). The Court of Appeals in its opinion relied heavily on Yakus v. United States, 321 U. S. 414 (1944), in which this Court held that Congress in the context of criminal proceedings could require that the validity of regulatory action be challenged in a particular court at a particular time, or not at all. That case, however, does not decide this one. Because § 307 (b) expressly applies only to “emission standards,” we must still inquire as to the validity of the Government’s underlying assumption that the Administrator’s mere designation of a regulation as an “emission standard” is sufficient to foreclose any further inquiry in a criminal prosecution under § 113 (c) (1) (C) of the Act. For the reasons hereafter stated, we hold that one such as respondent who is charged with a criminal violation under the Act may defend on the ground that the “emission standard” which he is charged with having violated was not an “emission standard” within the contemplation of Congress when it employed that term, even though the “emission standard” in question has not been previously reviewed under the provisions of § 307 (b) of the Act. II In resolving this question, we think the statutory provisions of the Clean Air Act are far less favorable to the Government’s position than were the provisions of the Emergency Price Control Act considered in Yakus. The broad language of that statute gave clear evidence of congressional intent that any actions taken by the Price Administrator under the purported authority of the designated sections of. the Act should be challenged only in the Emergency Court of Appeals. Nothing has been called to our attention which would lead us to disagree with the Government’s description of the judicial review provisions of that Act: “Review of price control regulations was centralized in the Emergency Court of Appeals under a statute giving that court ‘exclusive’ jurisdiction of all non-constitutional challenges to price control regulations. The Court had no difficulty construing the statute as precluding any attack on a regulation in a criminal case (321 U. S., at 430-431), even though the statute did not explicitly mention criminal cases.” Brief for United States 18. This relatively simple statutory scheme contrasts with the Clean Air Act’s far more complex interrelationship between the imposition of criminal sanctions and judicial review of the Administrator’s actions. The statutory basis for imposition of criminal liability under subchapter I of the Act, under which this indictment was brought, is § 113 (c)(1), 84 Stat. 1687, as amended, 42 U. S. C. § 1857c-8 (c)(1) (1970 ed. and Supp. V): “(c)(1) Any person who knowingly— “(A) violates any requirement of an applicable implementation plan (i) during any period of Federally assumed enforcement, or (ii) more than 30 days after having been notified by the Administrator under subsection (a)(1) that such person is violating such requirement, or “(B) violates or fails or refuses to comply with any order issued by the Administrator under subsection (a), or “(C) violates section 111 (e), section 112 (c), or section 119 (g) “shall be punished by a fine of not more than $25,000 per day of violation, or by imprisonment for not more than one year, or by both. If the conviction is for a violation committed after the first conviction of such person under this paragraph, punishment shall be by a fine of not more than $50,000 per day of violation, or by imprisonment for not more than two years, or by both.” Each of the three separate subsections in the quoted language creates criminal offenses. The first of them, subsection (A), deals with violations of applicable implementation plans after receipt of notice of such violation. Under § 307 (b) (1), judicial review of the Administrator’s action in approving or promulgating an implementation plan is not restricted to the Court of Appeals for the District of Columbia Circuit, but may be had “in the United States Court of Appeals for the appropriate circuit.” But § 307 (b) (2) does provide that the validity of such plans may not be reviewed in the criminal proceeding itself. Subsection (C), which we discuss before turning to subsection (B), provides criminal penalties for violations of three separate sections of the Act: § 111 (e), 84 Stat. 1684, 42 U. S. C. § 1857c-6 (e), which prohibits operation of new stationary sources in violation of “standards of performance” promulgated by the Administrator; § 112 (c), which is the offense charged in this case; and § 119 (g), 88 Stat. 254, 42 U. S. C. § 1857c-10 (g) (1970 ed., Supp. V), which requires compliance with an assortment of administrative requirements, set out in more detail below. The Administrator’s actions in promulgating “standards of performance” under § 111, or “emission standards” under § 112 are, by the provisions of § 307 (b)(1), made reviewable exclusively in the Court of Appeals for the District of Columbia Circuit. However, his actions under subsections (A), (B), and (C) of § 119 (c)(2), compliance with which is required by § 119 (g)(2), are reviewable “in the United States Court of Appeals for the appropriate circuit.” Those subsections define the Administrator’s authority to issue compliance date extensions to particular stationary sources with regard to various air pollution requirements. The preclusive provisions of § 307 (b) (2) prohibit challenges to all of these administrative actions in both civil and criminal enforcement proceedings. But these restrictive review provisions do not apply to other violations of § 119 (g); with regard to those offenses, the invalidity of administrative action may be raised as a defense to the extent allowable in the absence of such restrictions. Finally, subsection (B) of § 113 (c)(1) subjects to criminal penalties “any person who knowingly . . . violates or fails or refuses to comply with any order issued by the Administrator under subsection (a).” Subsection (a), in turn, empowers the Administrator to issue orders requiring compliance, not only with those regulations for which criminal penalties are provided under subsections (A) and (C), but also with the record-keeping and inspection requirements of § 114, 42 U. S. C. § 1857c-9 (1970 ed., Supp. V), for which only civil penalties are ordinarily available under § 113 (b)(4). The restrictive review provisions of § 307 (b)(1), again do not apply to orders issued under § 113 (a) or to the underlying requirements of § 114. Those administrative actions would likely be reviewable under the Administrative Procedure Act, 5 U. S. C. § 701 et seg., and any infirmity in them could be raised as a defense in enforcement proceedings to the same extent as it could be in the absence of a provision such as § 307 (b)(2). Ill The conclusion we draw from this excursion into the complexities of the criminal sanctions provided by the Act are several. First, Congress has not chosen to prescribe either civil or criminal sanctions for violations of every rule, regulation, or order issued by the Administrator. Second, Congress, as might be expected, has imposed civil liability for a wider range of violations of the orders of the Administrator than those for which it has imposed criminal liability. Third, even where Congress has imposed criminal liability for the violation of an order of the Administrator, it has not uniformly precluded judicial challenge to the order as a defense in the criminal proceeding. Fourth, although Congress has applied the preclusion provisions of § 307 (b) (2) to implementation plans approved by the Administrator, and it has in § 113 (c)(1)(A) provided criminal penalties for violations of those plans, it has nonetheless required, under normal circumstances, that a violation continue for a period of 30 days after receipt of notice of the violation from the Administrator before the criminal sanction may be imposed. These conclusions in no way detract from the fact that Congress has precluded judicial review of an “emission standard” in the court in which the criminal proceeding for the violation of the standard is brought. Indeed, the- conclusions heighten the importance of determining what it was that Congress meant by an “emission standard,” since a violation of that standard is subject to the most stringent criminal liability-imposed by § 113 (c) (1) of the Act: Not only is the Administrator’s promulgation of the standard not subject to judicial review in the criminal proceeding, but no prior notice of violation from the Administrator is required as a condition for criminal liability. Since Congress chose to attach these stringent sanctions to the violation of an emission standard, in contrast to the violation of various other kinds of orders that might be issued by the Administrator, it is crucial to determine whether the Administrator’s mere designation of a regulation as an “emission standard” is conclusive as to its character. The stringency of the penalty imposed by Congress lends substance to petitioner’s contention that Congress envisioned a particular type of regulation when it spoke of an “emission standard.” The fact that Congress dealt moré leniently, either in terms of liability, of notice, or of available defenses, with other infractions of the Administrator’s orders suggests that it attached a peculiar importance to compliance with “emission standards.” Unlike the situation in Yakus, Congress in the Clean Air Act singled out violators of this generic form of regulation, imposed criminal penalties upon them which would not be imposed upon violators of other orders of the Administrator, and precluded them from asserting defenses which might be asserted by violators of other orders of the Administrator. All of this leads us to conclude that Congress intended, within broad limits, that “emission standards” be regulations of a certain type, and that it did not empower the Administrator, after the manner of Humpty Dumpty in Through the Looking-Glass, to make a regulation an “emission standard” by his mere designation. The statutory scheme supports the conclusion that § 307 (b)(2), in precluding judicial review of the validity of emission standards, does not relieve the Government of the duty of proving, in a prosecution under § 113 (c)(1)(C), that the regulation allegedly violated is an emission standard. Here, the District Qourt properly undertook to resolve that issue. In so doing, the court did not undermine the twin congressional purposes of insuring that the substantive provisions of the standard would be uniformly applied and interpreted and that the circumstances of its adoption would be quickly reviewed by a single court intimately familiar with administrative procedures. The District Court did not presume to judge the wisdom of the regulation or to consider the adequacy of the procedures which led to its promulgation, but merely concluded that it was not an emission standard. In sum, a survey of the totality of the statutory scheme does not compel agreement with the Government’s contention that Congress intended that the Administrator’s designation of a regulation as an emission standard should be conclusive in a criminal prosecution. At the very least, it may be said that the issue is subject to some doubt. Under these circumstances, we adhere to .the familiar rule that, “where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.” United States v. Bass, 404 U. S. 336, 348 (1971). Cf. Rewis v. United States, 401 U. S. 808, 812 (1971). We conclude, therefore, that a federal court in which a criminal prosecution under § 113 (c)(1)(C) of the Clean Air Act is brought may determine whether or not the regulation which the defendant is alleged to have violated is an “emission standard” within the meaning of the Act. We are aware of the possible dangers that flow from this interpretation; district courts will be importuned, under the guise of making a determination as to whether a regulation is an “emission standard,” to engage in judicial review in a manner that is precluded by § 307 (b) (2) of the Act. This they may not do. The narrow inquiry to be addressed by the court in a criminal prosecution is not whether the Administrator has complied with appropriate procedures in promulgating the regulation in question, or whether the particular regulation is arbitrary, capricious, or supported by the administrative record. Nor is the court to pursue any of the other familiar inquiries which arise in the course of an administrative review proceeding. The question is only whether the regulation which the defendant is alleged to have violated is on its'face an “emission standard” within the broad limits of the congressional meaning of that term. IV It remains to be seen whether the District Court reached the correct conclusion with regard to the regulation here in question. In the Act, Congress has given a substantial indication of the intended meaning of the term “emission standard.” Section 112 on its face distinguishes between emission standards and the techniques to be utilized in achieving those standards. Under § 112 (c) (1) (B) (ii), the Administrator is empowered temporarily to exempt certain facilities from the burden of compliance with an emission standard, “if he finds that such period is necessary for the installation of controls.” In specified circumstances, the President, under § 112 (c) (2), has the same power, “if he finds that the technology to implement such standards is not available.” Section 112 (b) (2) authorizes the Administrator to issue information on “pollution control techniques.” Most clearly supportive of petitioner’s position that a standard was intended to be a quantitative limit on emissions is this provision of §112 (b)(1)(B): “The Administrator shall establish any such standard at the level which in his judgment provides an ample margin of safety to protect the public health from such hazardous air pollutant.” (Emphasis added.) All these provisions lend force to the conclusion that a standard is a quantitative “level” to be attained by use of “techniques,” “controls,” and “technology.” This conclusion is fortified by recent amendments to the Act, by which Congress authorized the Administrator to promulgate a “design, equipment, work practice, or operational standard” when “it is not feasible to prescribe or enforce an emission standard.” Clean Air Act Amendments of 1977, Pub. L. 95-95, § 110, 91 Stat. 703. This distinction, now endorsed by Congress, between “work practice standards” and “emission standards” first appears in the Administrator’s own account of the development of this regulation. Although the Administrator has contended that a “work practice standard” is just another type of emission standard, the history of this regulation demonstrates that he chose to regulate work practices only when it became clear he could not regulate emissions. The regulation as originally proposed would have prohibited all visible emissions of asbestos during the course of demolitions. 36 Fed. Reg. 23242 (1971). In adopting the final form of the regulation, the Administrator concluded “that the no visible emission requirement would prohibit repair or demolition in many situations, since it would be impracticable, if not impossible, to do such work without creating visible emissions.” 38 Fed. Reg. 8821 (1973). Therefore the Administrator chose to “specif [y] certain work practices” instead. Ibid. The Government concedes that, prior to the 1977 Amendments, the statute was ambiguous with regard to whether a work-practice standard was properly classified as an emission standard, but argues that this Court should defer to the Administrator’s construction of the Act: Brief for United States 32, and n. 22. While such deference is entirely appropriate under ordinary circumstances, in this case the 1977 Amendments to the Clean Air Act tend to undercut the administrative construction. The Senate Report reiterated its “strong preference for numerical emission limitations/’ but endorsed the addition of § 112 (e) to the Act to allow the use of work-practice standards “in a very few limited cases.” S. Rep. No. 95-127, p. 44 (1977). Although the Committee agreed that the Amendments would authorize the regulation involved here, it refrained from endorsing the Administrator’s view that the regulation had previously been authorized as an emission standard under § 112 (c). The clear distinction drawn in § 112 (e) between work-practice standards and emission standards practically forecloses any such inference. Cf. Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 380-381 (1969). For all of the foregoing reasons, we conclude that the work-practice standard involved here was not an emission standard. The District Court’s order dismissing the indictment was therefore proper, and the judgment of the Court of Appeals is Reversed. Section 119, which was in effect at the inception of this prosecution, has lately been replaced by a new § 113 (d). Clean Air Act Amendments of 1977, Pub. L. 95-95, § 112, 91 Stat. 705. The severity of the scheme is accentuated by the fact that persons subject to the Act, including innumerable small businesses, may protect themselves against arbitrary administrative action only by daily perusal of proposed emission standards in the Federal Register and by immediate initiation of litigation in the District of Columbia to protect their interests. Such a preliminary analysis of administrative action is hardly unique. Only last Term, in E. I. du Pont de Nemours & Co. v. Train, 430 U. S. 112 (1977), this Court approved such an initial examination of regulations promulgated under the Federal Water Pollution Control Act. As we. described the issue presented there: “If EPA is correct that its regulations are ‘effluent limitation[s] under section 301,’ the regulations are directly reviewable in the Court of Appeals. If industry is correct that the regulations can only be considered § 304 guidelines, suit to review the regulations could probably be brought only in the District Court, if anywhere. Thus, the issue of jurisdiction to review the regulations is intertwined with the issue of EPA’s power to issue the regulations.” Id., at 124-125. In that case, the District Court had conducted a careful analysis, concluding that the regulations in question were “effluent limitations,” 383 F. Supp. 1244 (WD Va. 1974), aff’d, 528 F. 2d 1136 (CA4 1975), just as the District Court here concluded that this regulation is not an emission standard. Since oral argument, Congress has again confirmed that the term "emission standard” is not broad enough to include a work-practice standard. Congress has amended §307 (b)(1), which originally governed review of "any emission standard under section 112,” to cover “any emission standard or requirement under section 112.” Pub. L. No. 95-190, § 14 (a) (79), 91 Stat. 1404. As Mr. Justice Stevens’ dissent notes, post, at 306, Congress has yet to apply this recognition to the enforcement provisions of § 112 (c). Our Brother SteveNS quite correctly points out, post, at 302, that an administrative “ 'contemporaneous construction’ ” of a statute is entitled to considerable weight, and it is true that the originally proposed regulations contain, with respect to some uses of asbestos, the sort of provisions which the Administrator and the Congress later designated as “work practice standards.” It bears noting, however, that these regulations can only be said to define by implication the meaning of the term “emission standard.” The Administrator promulgated both of them; both were denominated “emission standards”; and it is undoubtedly a fair inference that the Administrator thought each to be an “emission standard.” But neither the regulations themselves nor the comments accompanying them give any indication of the Administrator’s reasons for concluding that Congress, in authorizing him to promulgate “emission standards,” intended to include “work practice standards” within the meaning of that term. See 38 Fed. Reg. 8820-8822, 8829-8830 (1973); 36 Fed. Reg. 23239-23240, 23242 (1971). This lack of specific attention to the statutory authorization is especially important in light of this Court’s pronouncement in Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944), that one factor to be considered in giving weight to an administrative ruling is “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” The Administrator’s remarks with regard to these regulations clearly demonstrate that he carefully considered available techniques and methods for controlling asbestos emissions, but they give no indication of “the validity of [his] reasoning” in concluding that he was authorized to promulgate these techniques as an “emission standard,” within the statutory definition. Since this Court can only speculate as to his reasons for reaching that conclusion, the mere promulgation of a regulation, without a concomitant exegesis of the statutory authority for doing so, obviously lacks “power to persuade” as to the existence of such authority. By contrast, the Wage and Hour Administrator in Gemsco, Inc. v. Walling, 324 U. S. 244 (1945), referred to in Brother Stevens’ dissenting opinion, post, at 299-300, n. 16, gave clear indication of his reasons for concluding that the administrative regulation prohibiting industrial homework was authorized by § 8 (f) of the Fair Labor Standards Act, 52 Stat. 1065. The statute empowered the Administrator to issue orders necessary “to prevent the circumvention or evasion” of orders issued un,der § 8 (f), and the Administrator specifically found that the practice prohibited by the order there challenged “ Turnishe[d] a ready means of circumventing or evading the minimum wage order for this Industry.’ ” 324 U. S., at 250, n. 9. In this case, the Administrator of the Environmental Protection Agency offered no comparable analysis of his statutory authority. In Train v. Natural Resources Defense Council, 421 U. S. 60 (1975), relied upon by Brother Stevens’ dissent, this Court was not persuaded by “a single sentence in the Federal Register,” post, at 301 n. 18, but by our own “analysis of the structure and legislative history of the Clean Air Amendments,” 421 U. S., at 86, which led us to a result consistent with the Administrator’s prior practice. Here, our analysis mandates a contrary conclusion, which is not undercut by the Administrator’s unexplained exercise of supposed authority. Finally, as noted in n. 4, supra, Congress has not explicitly adopted the Administrator’s present position with regard to the meaning of the term “emission standard,” although it could easily have done so. It is true, as that dissent remarks, post, at 305-306, n. 24, that Congress has responded to concerns expressed by the Administrator. However, he first advised us of the deficiency in § 307 (b) at oral argument, and even then did not suggest that under the statutory scheme as it presently exists his work-practice standards may be unenforceable. This piecemeal approach to the complexities of the Act hardly displays the “thoroughness . . . in . . . consideration/’ Skidmore, supra, at 140, which we would expect to find in an administrative construction.

Adamo Wrecking Co. v. United States

Mr. Justice Powell, concurring. If the constitutional validity of § 307 (b) of the Clean Air Act had been raised by petitioner, I think it would have merited serious consideration. This section limits judicial review to the filing of a petition in the United States Court of Appeals for the District of Columbia Circuit within 30 days from the date of the promulgation by the Administrator of an emission standard. No notice is afforded a party who may be subject to criminal prosecution other than publication of the Administrator’s action in the Federal Register. The Act in this respect is similar to the preclusion provisions of the Emergency Price Control Act before the Court in Yakus v. United States, 321 U. S. 414 (1944), and petitioner may have thought the decision in that case effectively foreclosed a due process challenge in the present case. Although I express no considered judgment, I think Yakus is at least arguably distinguishable. The statute there came before the Court during World War II, and it can be viewed as a valid exercise of the war powers of Congress under Art. I, § 8, of the Constitution. Although the opinion of Mr. Chief Justice Stone is not free from ambiguity, there is language emphasizing that the price controls imposed by the Congress were a “war emergency measure.” Indeed, the Government argued that the statute should be upheld under the war powers authority of Congress. Brief for United States in Yakus v. United States, O. T. 1943, No. 374, p. 35. As important as environmental concerns are to the country, they are not comparable — in terms of an emergency justifying the shortcutting of normal due process rights — to the need for national mobilization in wartime of economic as well as military activity. The 30-day limitation on judicial review imposed by the Clean Air Act would afford precariously little time for many affected persons even if some adequate method of notice were afforded. It also is totally unrealistic to assume that more than a fraction of the persons and entities affected by a regulation — especially small contractors scattered across the country — would have knowledge of its promulgation or familiarity with or access to the Federal Register. Indeed, following Yakus, and apparently concerned by Mr. Justice Rutledge’s eloquent dissent, Congress amended the most onerous features of the Emergency Price Control Act. 1 join the Court’s opinion with the understanding that it implies no view as to the constitutional validity of the preclusion provisions of § 307 (b) in the context of a criminal prosecution. Section, 112 (b) (1) (B) of the Act requires the Administrator to publish proposed emission standards and to hold a public hearing before standards are promulgated. But there is no more assurance that notice of proposed standards will come to the attention of the thousands of persons and entities affected than that notice of their actual promulgation will. Neither is it realistic to assume that more than a fraction of these persons and entities could afford to follow or participate in the Administrator’s hearing. See 321 U. S., at 460 (Rutledge, J., dissenting); 58 Stat. 638-640, amending the Emergency Price Control Act of 1942, 56 Stat. 23; L. Jaffe, Judicial Control of Administrative Action 451 (1965).

Adamo Wrecking Co. v. United States

Mr. Justice Stewart, with whom Mr. Justice Brennan and Mr. Justice Blacicmun join, dissenting. Section 307 (b)(1) of the Clean Air Act provides that a “petition for review of action of the Administrator in promulgating . . . any emission standard under section 112” may be filed only in the United States Court of Appeals for the District of Columbia Circuit within 30 days of promulgation. Section 307 (b)(2) of the Act provides that an “:[a]ction of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement.” Despite these unambiguous provisions, the Court holds in this case that such an action of the Administrator shall be subject to judicial review in a criminal proceeding for enforcement of the Act, at least sometimes. Because this tampering with the plain statutory language threatens to destroy the effectiveness of the unified and expedited judicial review procedure established by Congress in the Clean Air Act, I respectfully dissent. The inquiry that the Court today allows a trial court to make — whether the asbestos regulation at issue is an emission standard of the type envisioned by Congress — is nothing more than an inquiry into whether the Administrator has acted beyond his statutory authority. But such an inquiry is a normal part of judicial review of agency action. 5 U. S. C. § 706 (2) (C); see Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 415. And it is precisely such “judicial review” of an “[a]ction of the Administrator” that Congress has, in § 307 (b)(2), expressly forbidden a trial court to undertake. There is not the slightest indication in the Act or in its legislative history that Congress, in providing for review of the Administrator’s actions only in the Court of Appeals for the District of Columbia Circuit, meant nonetheless to allow some kinds of review to be available in other courts. To the contrary, Congress clearly ordained that “any review of such actions” be controlled by the provisions of § 307. S. Rep. No. 91-1196, p. 41 (1970) (emphasis supplied). The Court’s interpretation of §307 (b)(2) also conspicuously frustrates the intent of Congress to establish a speedy and unified system of judicial review under the Act. The Court concludes that violation of the regulation involved in this case is not proscribed by §§ 112 (c) (1) (B) and 113 (c) (1) (C) because the regulation is not an emission standard. This interpretation of the Act would make judicial review of this regulation in the Court of Appeals for the District of Columbia Circuit impossible, since that court has statutory jurisdiction under § 307 (b)(1) to review “emission standard [s] ” but is not given jurisdiction to review the actions of the Administrator generally. It follows that judicial review of this action of the Administrator could be had only in other courts, either in enforcement proceedings as in this case or under the general provisions of the Administrative Procedure Act, 5 U. S. C. § 701 et seq., despite the clearly expressed congressional intent to centralize all judicial review of the Administrator’s regulations. The Court’s interpretation thus not only invites precisely the sort of inconsistent judicial determinations by various courts that Congress sought to prevent, but flies in the face of the congressional purpose “to maintain the integrity of the time sequences provided throughout the Act.” S. Rep. No. 91-1196, supra, at 41. Finally, the Court provides no real guidance as to which aspects of an emission standard áre so critical that they fall outside the scope of the exclusive judicial review procedure provided by Congress. For example, § 112 requires that an emission standard relate to a “hazardous air pollutant,” and that it be set so as to provide “an ample margin of safety to protect the public health.” Such express congressional mandates would seem at least as important in determining whether a regulation is a statutorily authorized emission standard as the supposed requirement that the regulation be numerical in form. Are issues such as these, therefore, now to be subject to review in trial court enforcement proceedings? The Court today has allowed the camel's nose into the tent, and I fear that the rest of the camel is almost certain to follow. Since I believe that the Administrator’s action in promulgating this regulation could have been reviewed in the Court of Appeals for the District of Columbia Circuit under § 307 (b)(1), and that such review could have included the petitioner’s claim that the Administrator’s action was beyond his authority under the Act, I would hold that the petitioner was barred by the express language of § 307 (b)(2) from raising that issue in the present case. Because the petitioner has not raised any constitutional challenge in this case, there is no occasion to consider what limits,, if any, the Due Process Clause of the Fifth Amendment imposes on the power of Congress to qualify or foreclose judicial review of agency action.

Adamo Wrecking Co. v. United States

Me. Justice Stevens, dissenting. The reason Congress attached “the most stringent criminal liability,” ante, at 283, to the violation of an emission standard for a “hazardous air pollutant” is that substances within that narrow category pose an especially grave threat to human health. That is also a reason why the Court should avoid a construction of the statute that would deny the Administrator the authority to regulate these poisonous substances effectively. The reason the Administrator did not frame the emission standard for asbestos in numerical terms is that asbestos emissions cannot be measured numerically. For that reason, if Congress simultaneously commanded him (a) to regulate asbestos emissions by establishing and enforcing emission standards and (b) never to use any kind of standard except one framed in numerical terms, it commanded an impossible task. Nothing in the language of the 1970 statute, or in its history, compels so crippling an interpretation of the Administrator’s authority. On the contrary, I am persuaded (1) that the Administrator’s regulation of asbestos emissions was entirely legitimate; (2) that if this conclusion were doubtful, we would nevertheless be required to respect his reasonable interpretation of the governing statute; (3) that the 1977 Amendments, fairly read, merely clarified his pre-existing-authority; and (4) that the Court’s reading of the statute in its current form leads to the anomalous conclusion that work-practice rules, even though properly promulgated, are entirely unenforceable. Accordingly, although I agree with the conclusions reached in Parts I, II, and III of the Court’s opinion, I cannot accept Part IV’s disposition of the most important issue in this case. I The regulation which petitioner is accused of violating requires that asbestos insulation and fireproofing in large buildings be watered down before the building is demolished. The effect of the regulation is to curtail the quantity of asbestos which is emitted into the open air during demolition. Because neither the rule nor its limiting effect is expressed in numerical terms, the Court holds that the asbestos regulation cannot be a “standard” within the meaning of § 112 (b)(1) of the Clean Air Act. This conclusion is not compelled by the use of the word “standard” or by Congress’ expectation that standards would normally be expressed in numerical terms; for the statute contains no express requirement that standards always be framed in such language. The question is simply whether § 112 (b), which directs the Administrator to adopt regulations establishing emission standards for hazardous air pollutants, granted him the authority to promulgate the asbestos standard challenged in this case. Section 112 is concerned with a few extraordinarily toxic pollutants. Only three substances, including asbestos, have been classified as “hazardous air pollutants” within the meaning of § 112. These pollutants are subject to special federal regulation. In § 112, Congress ordered the Administrator to identify and to regulate them without waiting for the States to develop implementation plans of their own. Thus, the procedure under § 112 contrasts markedly with the more leisurely'and decentralized process of setting and enforcing the general ambient air standards. Congress was gravely concerned about the poisonous character of asbestos emissions when it drafted § 112. In fact, with regard to the hazardous air pollutants covered by this section, Congress expressed its willingness to accept the prospect of plant closings: “The standards must be set to provide an ample margin of safety to protect the public health. This could mean, effectively, that a plant would be required to close because of the absence of control techniques. It could include emission standards which allowed for no measurable emissions.” In accord with Congress’ expectation, the Administrator promptly listed asbestos as a hazardous air pollutant, and published a proposed emission standard. As first proposed, the standard would have prohibited any visible emission of asbestos in connection with various activities, including the repair or demolition of commercial and apartment buildings. If that total prohibition had been adopted, it unquestionably would have conformed to the statutory mandate. It was not adopted, however, because industry convinced the Administrator that his proposal would prevent the demolition of any large building. At public hearings it was demonstrated that demolition inevitably causes some emission of particulate asbestos and, further, that these emissions cannot be measured. Accordingly, instead of the severe numerical standard of zero emissions — which might have put an entire industry out of business — the Administrator adopted a standard which would reduce the emission of asbestos without totally prohibiting it. Not a word in the Administrator’s long and detailed explanation of the standard indicates that anyone questioned his statutory authority to promulgate this type of emission standard. The promulgated standard is entirely consistent with congressional intent. Congress had indicated a preference for numerical emission standards. Congress had also expressed a willingness to accept the serious economic hardships that a total prohibition of asbestos emissions would have caused. But there is no evidence that Congress intended to require the Administrator to make a choice between the extremes of closing down an entire industry and imposing no regulation on the emission of a hazardous pollutant; Congress expressed no overriding interest in using a numerical standard when industry is able to demonstrate that a less drastic control tech-ñique is available, and that it provides an ample margin of safety to the public health. Admittedly, Congress did not foresee the Administrator’s dilemma with precision. But there is nothing unique about that circumstance. See, e. g., Mourning v. Family Publications Serv., Inc., 411 U. S. 356, 372-373. Indeed, there’ would be no need for interstitial administrative lawmaking if Congress could foresee every ramification of laws as complex as this. I am persuaded that the Administrator’s solution was faithful to his statutory authority and that he would have misused his power if he had either failed to regulate asbestos emissions at all or unnecessarily demolished an entire industry. II The precise question presented to this Court is not whether, as an initial matter, we would regard the asbestos regulation as an “emission standard” within the meaning of § 112. Rather, the issue is whether the Administrator's answer to the question of statutory construction is “sufficiently reasonable that it should have been accepted by the reviewing courts.” Train v. Natural Resources Defense Council, 421 U. S. 60, 75. The Administrator, who has primary responsibility for carrying out the purposes of the Clean Air Act, interpreted the term “emission standard” to include the rule before us. Contrary to the Court’s implication, ante, at 287, the Administrator did not promulgate this rule “instead” of an emission standard. He unambiguously concluded that the rule was a proper emission standard. Because the statute is the Administrator’s special province, we should not lightly set aside his judgment. “When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration. 'To sustain the Commission’s application of this statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.’ ” Udall v. Tallman, 380 U. S. 1, 16. The Administrator began the process of promulgating this rule within weeks of § 112’s enactment, 36 Fed. Reg. 23242 (1971). The wise teaching of Mr. Justice Cardozo, who spoke for the Court in Norwegian Nitrogen Co. v. United States, 288 U. S. 294, is therefore directly pertinent. He observed that an administrative “practice has peculiar weight when it involves a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new.” Id., at 315. The Court holds that these well-established doctrines apply only in “ordinary circumstances.” Ante, at 288. I do not understand why thése rules of construction should be less applicable in the unusual than in the ordinary case. Indeed, it seems to me that the extraordinary importance of regulating a hazardous air pollutant in a way that is both fair and effective provides an additional reason for respecting the Administrator’s reliance on well-established doctrine, rather than a reason for reaching out to undermine his authority. In the Court’s view, however, the enactment of amendments to the Clean Air Act in 1977 was an extraordinary circumstance that justifies a departure from settled principles. The Court takes the novel position that the Administrator’s construction of the 1970 Amendments may be ignored because the legislative history of the 1977 Amendments did not produce an explicit endorsement of his construction. In my judgment this holding places an unwise limit on the deference which should be accorded to administrators’ interpretations of the statutes they enforce. It also misreads the history of the 1977 Amendments. Ill The Court’s conclusion ultimately rests on the 1977 Amendments. Even accepting the dubious premise that we can rely on the 95th Congress to tell us what the 93d had in mind, the 1977 Amendments do not support the Court’s interpretation of the statute. The history of the Amendments is instructive. In late 1974, several wrecking companies successfully challenged indictments brought against them in the Northern District of Illinois for violating the wetting requirements. Six weeks after the first court ruling, the Administrator proposed an amendment that would expressly confirm his authority to establish design, equipment, or work-practice standards when numerical emission limitations were not feasible. A major bill to amend the Clean Air Act was proposed in the 94th Congress, but the House and Senate were unable to agree. In 1977, the Senate again proposed a major revision. It included the Administrator’s requested authorization. S. Rep. No. 95-127, p. 163. The Senate Report does not indicate whether the Senators considered the Illinois decisions correct or incorrect. Id., at 44. However, as introduced in the Senate, the bill clearly provided that a design, equipment, or operational standard was a species of “hazardous emission standard.” When the bill emerged from conference, it no longer expressly stated that a work-practice rule was an emission standard. This change therefore lends support to the Court’s view. But it is most unlikely that the Conference Committee intended to express indirect disapproval of the Administrator’s reading of the 1970 Amendments. The Conference Report explained that the change in language was merely intended to “clarify” an aspect of the Senate version which was unrelated to the question whether a work-practice rule is, or had been a species of emission standard. There is only one relevant lesson that may be learned from this history: As soon as someone challenged the Administrator’s power to promulgate work-practice rules of this sort, Congress made it unambiguously clear that the Administrator had that power. As the Court notes, Congress preferred numerical standards; it accepted work-practice rules only as a last resort. But the same may be said of the Administrator, who instituted a wetting requirement only after becoming convinced that no other standard was practicable. It is true, as the Court says, that the Senate Report “refrained from endorsing the Administrator’s view that the regulation had previously been authorized as an emission standard under § 112 (c).” Ante, at 289. It is equally true that the Senate Report refrained from criticizing the Administrator’s view. In short, what Congress said in 1977 sheds no light on its understanding of the original meaning of the 1970 Amendments. But what Congress did when it expressly authorized work-practice rules persuasively indicates that, if Congress in 1970 had focused on the latent ambiguity in the term “emission standard,” it would have expressly granted the authority that the Administrator regarded as implicit in the statute as written. IV A reading of the entire statute, as amended in 1977, confirms my opinion that the asbestos regulation is, and since its promulgation has been, an emission standard. If this is not true, as the Court holds today, it is unenforceable, and will continue to be unenforceable even if promulgated anew pursuant to the authority expressly set forth in the 1977 Amendments. The Clean Air Act treats the Administrator’s power to promulgate emission standards separately from his power to enforce them. While it is § 112 (b) that gives the Administrator authority to promulgate an “emission standard,” it is § 112 (c) that prohibits the violation of an “emission standard.” Presumably the Court’s holding that a work-practice rule is not an “emission standard” applies to both of these sections. Under that holding a work-practice rule may neither be enforced nor promulgated as an emission standard. This holding will not affect the Administrator’s power to promulgate work-practice rules, because the 1977 Amendments explicitly recognize that power. But Congress has not amended § 112 (c), which continues to permit enforcement only of “emission standards.” Accordingly, the Court’s holding today has effectively made the asbestos regulation, and any other work-practice rule as well, unenforceable. Ironically, therefore, the 1977 Amendments, which were intended to lift the cloud over the Administrator’s authority, have actually made his exercise of that authority ineffectual. This is the kind of consequence a court risks when it substitutes its reading of a complex statute for that of the Administrator charged with the responsibility of enforcing it. Moreover, it is a consequence which would be entirely avoided by recognizing that the Administrator acted well within his statutory authority when he promulgated the asbestos regulation as an “emission standard” for hazardous air pollutants. I would affirm the judgment of the Court of Appeals for the Sixth Circuit. Nor can I join Mr. Justice Stewart’s opinion, because he does not explain what test he applies to determine that § 307 (b) precludes any challenge to the asbestos regulation in an enforcement proceeding. The preclusion provision applies only if the Administrator’s action could have been reviewed in the Court of Appeals for the District of Columbia Circuit; and review was not available there unless the Administrator’s “action” was the promulgation of an “emission standard” within the meaning of §307 (b). In short, Mr. Justice Stewart’s dissent rests either on the unarticulated premise that the asbestos regulation was an “emission standard” under §307 (b), or on the application of a test not to be found in the language of the statute. The emission standard for asbestos provides, in pertinent part: "(i) Friable asbestos materials, used to insulate or fireproof any boiler, pipe, or load-supporting structural member, shall be wetted and removed from any building, structure, facility, or installation subject to this paragraph before wrecking of load-supporting structural members is commenced. The friable asbestos debris shall be wetted adequately to insure that such debris remains wet during all stages of demolition and related handling operations.” 40 CFR §61.22 (d) (2) (i) (1975). Section 112 (b)(1) provides: “(A) The Administrator shall, within 90 days after the date of enactment of the Clean Air Amendments of 1970, publish (and shall from time to time thereafter revise) a list which includes each hazardous air pollutant for which he intends to establish an emission standard under this section. “(B) Within 180 days after the inclusion of any air pollutant in such fist, the Administrator shall publish proposed regulations establishing emission standards for such pollutant together with a notice of a public hearing within thirty days. Not later than 180 days after such publication, the Administrator shall prescribe an emission standard for such pollutant, unless he finds, on the basis of information presented at such hearings, that such pollutant clearly is not a hazardous air pollutant. The Administrator shall establish any such standard at the level which in his judgment provides an ample margin of safety to protect the public health from such hazardous air pollutant. “(C) Any emission standard established pursuant to this section shall become effective upon, promulgation.” 84 Stat. 1685, 42 U. S. C. § 1857c-7 (b)(1). There is no semantic reason why the word “standard” may not be used to describe the watered-down asbestos standard involved in this case. Indeed, the Court itself has previously identified a “watered down standard” that is not expressed in numerical terms, see Benton v. Maryland, 395 U. S. 784, 796. See 40 CFR § 61 (1975). Compare § 112, 42 U. S. C. § 1857c-7, with §§ 109 and 110, 42 U. S. C. §§ 1857c-4 and 1857c-5 (1970 ed. and Supp. V). See, e. g., National Air Quality Standards Act of 1970, S. Rep. No. 91-1196, p. 20 (1970). This statement was made in a written summary of the conference agreement presented by Senator Muskie to the Senate, which then agreed to the Conference Report. Summary of the Provisions of Conference Agreement on the Clean Air Amendments of 1970, reprinted in Senate Committee on Public Works, A Legislative History of the Clean Air Amendments of 1970, 93d Cong., 2d Sess., 133 (Comm. Print 1974). See also id., at 150. 36 Fed. Reg. 5931 (1971). The three hazardous air pollutants — -asbestos, beryllium, and mercury — listed by the Administrator on March 29, 1971, were all identified in the legislative history. The Administrator’s investigation fully supported Congress’ suspicion that asbestos was an intolerably dangerous pollutant. Among other risks, even low-level or intermittent exposure to- asbestos can cause cancer 20 or 30 years after the event. 38 Fed. Reg. 8820 (1973). For example, a form of cancer usually found almost exclusively in asbestos workers killed a woman whose only contact with the pollutant was washing the workelothes of her children, who worked for an asbestos company. See Horvitz, Asbestos and Its Environmental Impact, 3 Environmental Affairs 145, 146 (1974). “(d) Visible emissions to the atmosphere of asbestos particulate matter resulting from the repair or demolition of any building or structure, other than a single-family dwelling are prohibited.” 36 Fed. Reg. 23242 (1971). The Administrator explained: “The proposed standard would have prohibited visible emissions of asbestos particulate material from the repair or demolition of any building or structure other than a single-family dwelling. Comments indicated that the no visible emission requirement would prohibit repair or demolition in many situations, since it would be impracticable, if not impossible, to do such work without creating visible emissions. Accordingly, the promulgated standard specifies certain work practices which must be followed when demolishing certain buildings or structures. The standard covers institutional, industrial, and commercial buildings or structures, including apartment houses having more than four dwelling units, which contain friable asbestos material.” 38 Fed. Reg. 8821 (1973). There was no review of the emission standard for asbestos in the United States Court of Appeals for the District of Columbia Circuit. An untimely-petition for review was dismissed without any decision on the merits. Dore Wrecking Co. v. Fri, No. 73-1686 (CADC, Aug. 1, 1973). Contrary to the implication in n. 2 of the Court’s opinion, this case does not raise any question about fair notice to small businesses. The wrecking company prosecuted here was individually notified about the wetting requirement and individually responded to the notice by promising to comply fully with the regulation on all future jobs. Indeed, the company’s response specifically named the location, where, according to the indictment, it subsequently committed a knowing violation of the regulation. Congress apparently believed that too frequent resort to work-practice rules or equipment specifications would discourage the private market’s pursuit of “the most economic, acceptable technique to apply.” S. Rep. No. 91-1196, at 17. A summary of the conference agreement states that § 112 “could mean, effectively, that a plant would be required to close because of the absence of control techniques.” See text accompanying n. 8, supra. This statement implies that the Administrator should avoid setting emission standards that will require plant closings if alternative control techniques — including work-practice rules — can, provide an ample margin of safety. It is unlikely that Congress intended, by expressing a modest preference for numerical standards, see n. 11, supra, to mandate plant closings under a numerical standard when a work-practice rule would achieve the same level of protection with less economic disruption. [T]he Administrator has determined that, in order to provide an ample margin of safety to protect the public health from asbestos, it is necessary to control emissions from major man-made sources of asbestos emissions into the atmosphere, but that it is not necessary to prohibit all emissions.” 38 Fed. Reg. 8820 (1973). In Gemsco, Inc. v. Walling, 324 U. S. 244, this Court approved a much more dubious substitute for a regulation that Congress surely expected to be framed in numerical terms. In that case the Administrator of the Fair Labor Standards Act decided to ban industrial homework as a way of enforcing the minimum wage. If homework were allowed to continue, the Administrator concluded, industry could readily evade wage standards. Although the Administrator lacked any express authority to regulate industrial homework, this Court approved his action, saying: “The industry is covered by the Act. This is not disputed. The intent of Congress was to provide the authorized minimum wage for each employee so covered. Neither is this questioned. Yet it is said in substance that Congress at the same time intended to deprive the Administrator of the only means available to make its mandate effective. The construction sought would make the statute a dead letter in this industry. “The statute itself thus gives the answer. It does so in two ways, by necessity to avoid self-nullification and by its explicit terms. The necessity should be enough. But the Act’s terms reinforce the necessity’s teaching. Section 8 (d) requires the Administrator to ‘carry into effect’ the committee’s approved recommendations. Section 8 (f) commands him to include in the order ‘such terms and conditions’ as he ‘finds necessary to carry out’ its purposes. . . . When command is so explicit and, moreover, is reinforced by necessity in order to make it operative, nothing short of express limitation or abuse of discretion in finding that the necessity exists should undermine the action taken to execute it.” Id., at 254-255. In the present case, necessity also demanded the promulgation of a work-practice rule if Congress’ purposes were to be carried out at a cost acceptable to the Nation. Furthermore, the Administrator of the Environmental Protection Agency has similar powers “to prescribe such regulations as are necessary to carry out his functions under this chapter.” § 301, 42 U. S. C. § 1857g (a). In promulgating the wetting requirement, the Administrator consistently referred to it as an emission standard: “[T]he promulgated standard specifies certain work practices which must be followed when demolishing certain buildings or structures. The standard covers institutional, industrial, and commercial buildings or structures .... The standard requires that the Administrator be notified at least 20 days prior to the commencement of demolition.” 38 Fed. Reg. 8821 (1973). In a recent case dealing with the proper construction of the Clean Air Act, the Court deferred to the view of the Administrator: “Without going so far as to hold that the Agency’s construction of the Act was the only one it permissibly could have adopted, we conclude that it was at the very least sufficiently reasonable that it should have been accepted by the reviewing courts.” Train v. Natural Resources Defense Council, 421 U. S. 60, 75. See also McLaren v. Fleischer, 256 U. S. 477, 480-481. The Court rejects the Administrator’s view because his “mere promulgation of a regulation” lacks power to persuade. Ante, at 288 n. 5. We have not previously required that judicial-style opinions accompany administrative actions or interpretations. In Train, supra, the Court deferred to the Administrator’s interpretation of the Clean Air Act even though his interpretation had been rejected by every Circuit to consider it, 421 U. S., at 72, and even though the interpretation was expressed and “supported” only by a single sentence in the Federal Register. 36 Fed. Reg. 22398, 22405 (1971). The Court’s “own 'analysis of the structure and legislative history,’ ” ante, at 288 n. 5, was limited to answering the question whether the Administrator’s construction was “sufficiently reasonable” to be permissible. 421 U. S., at 75. Similarly, in Norwegian Nitrogen Co. v. United States, 288 U. S. 294, the Court deferred to an administrative practice that apparently was formally justified only after the practice was challenged in court. Id., at 311, 314-315. There is even more reason than usual to defer to the Administrator in the present case. Here we must decide whether the asbestos-wetting regulation is an emission standard within the meaning of a statute that allows prompt appellate review of such standards in a single court and precludes later challenges. § 307 (b), 42 U. S. C. § 1857h-5 (b) (1970 ed., Supp. V). Congress clearly wanted speedy, uniform, and final review of hazardous emission standards. Because this regulation is an attempt to control hazardous emissions on a nationwide basis, the need for speedy, uniform, and final review is just as great here as in the case of a numerical standard. If the reasons set forth in Part IV of the Court’s opinion are sufficient to sustain a collateral attack on this regulation, the preclusion statute has become almost meaningless. Of course, I do not suggest that the Administrator may take advantage of preclusion by simply "deeming” a regulation an emission standard. But when his characterization is challenged, we should try to understand the reason for the characterization before assuming that it was the product of a “Humpty Dumpty” thought process. See ante, at 283. See United States v. National Wrecking Co., No. 74 CR 755 (Dec. 20, 1974); United States v. Nardi Wrecking Co., No. 74 CR 756 (Jan. 2, 1975); United States v. Harvey Wrecking Co., No. 74 CR 758 (Jan. 7, 1975); United States v. Brandenburg Demolition, Inc., No. 74 CR 757 (Jan. 31, 1975). Letter from Environmentál Protection Agency Administrator to Senate Public Works Committee Chairman supporting proposed amendments to the Clean Air Act (Feb. 3, 1975), excerpted in Brief for United States, App. C. The bill provided, in relevant part: “(e) For purposes of this section the Administrator may promulgate a hazardous emission standard in terms of a design, equipment, or operational standard if he determines that such standard is necessary to control emissions of a hazardous pollutant or pollutants because, in the judgment of the Administrator, they cannot or should not be emitted through a conveyance designed and constructed to emit or capture such pollutants.” S. Rep. No. 95-127, p. 163 (1977). The Conference Report characterized the original Senate version as follows: “Amends section 112 of existing law to specify design, equipment, or operational standards for the control of a source of hazardous emissions, where an emission limitation is not possible or feasible to measure hazardous emissions or to capture them through appropriate devices for control.” H. R. Conf. Rep. No. 95-564, p. 131 (1977). It described the conference substitute in these terms: “The House concurs in the Senate provision with an amendment to clarify that the Administrator may specify a hazardous design standard if the emission of hazardous pollutants through a conveyance designed to emit or capture such pollutants would be inconsistent with any Federal, State or local law and minor clarifying modifications in the language.” Id., at 131-132. This conclusion is buttressed by the recent amendment to the judicial review provision of the Clean Air Act. Ante, at 286 n. 4. At oral argument in the present case, Members of this Court pointed out that § 307 (b) applied by its terms only to “emission standards” and suggested that the words “emission standard” should be given a narrow reading. See, e. g., Tr. of Oral Arg. 20. That was on October 11. On November 1, a technical-amendments bill was introduced in both Houses to clarify “ambiguous language” and “technical problems” in the Clean Air Act. See 123 Cong. Rec. S18372 (Nov. 1, 1977) (statement of Sen. Muskie); see also id., at H11953 (reading of H. Res. 885). The bill, which passed both Houses and was signed into law on November 16, treated the Court’s present reading of “emission standard” as a simple error. To prevent future misreadings of the provision, Congress amended it to apply to “any emission standard or requirement” under § 112. See § 307 (b)(1), 42 U. S. C. §7607 (b)(1) (1976 ed., Supp. I), as amended and recodified by the Safe Drinking Water Amendments of 1977, § 14 (a) (79), 91 Stat. 1399 (emphasis added). The presence of a similar ambiguity in the enforcement provision was not pointed out at oral argument, and it was not corrected. This history indicates that Congress is patiently correcting judicial errors in construing “emission standard” narrowly.

Francisco Sánchez v. Esso Standard Oil Co.

LIPEZ, Circuit Judge. This interlocutory appeal requires us to assess the validity of a preliminary injunction order entered pursuant to the federal Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901-6992k. Invoking RCRA’s citizen-suit provision, which allows private plaintiffs to bring suit to enforce the Act’s requirements, Dolores Service Station and Auto Parts, Inc., and its operator, Jorge Francisco Sánchez, sued Esso Standard Oil Company (Esso) in federal district court in Puerto Rico. For over two decades, Esso was Dolores Service Station’s gasoline and diesel fuel supplier as well as the owner of three Underground Storage Tanks (USTs) on the property. The complaint asserted that, at some point during Esso’s ownership of the USTs, the tanks had leaked petroleum-related substances into the surrounding soil and groundwater. Plaintiffs alleged that Esso’s subsequent failure to comply with federal and Commonwealth environmental regulations governing reporting and remediation of such leaks had resulted in unacceptable levels of contamination, thereby creating a serious public health hazard. Shortly after filing their complaint, plaintiffs sought a preliminary injunction that would order Esso to immediately comply with various environmental regulations, investigate the extent of the contamination, and implement remedial measures to clean up the site and prevent any further contamination. After a two-day hearing, the district court granted plaintiffs’ motion, entering a preliminary injunction and issuing a supporting opinion that contained a number of factual findings and legal conclusions. The order itself set forth a process for the completion of a comprehensive site assessment “before the court further order[ed] Esso to remediate soil and groundwater contamination at the site.” The order “enjoined and restrained” Esso “from contributing by action or inaction to further environmental contamination at the site,” and stating that “Esso will be ordered, depending on the results of the Comprehensive Site Assessment, to pay for all necessary testing, corrective actions, and removal of all pollution and contamination within the site and into adjacent areas.” Esso now challenges this order. Besides two threshold jurisdictional challenges that we reject, Esso argues primarily that the preliminary injunction is invalid because it demonstrates that “liability has been summarily determined without discovery [and] without the benefit of a trial on the merits.” Because we agree with that contention, we vacate the order to the extent that it represents an improper adjudication of the merits of the dispute. However, we leave intact the provisions concerning an environmental assessment of the allegedly contaminated site. I. A. Factual and Procedural Background Plaintiff Jorge Francisco Sánchez and his family have operated Dolores Service Station and Auto Parts, Inc. in Canóvanas, Puerto Rico since the early 1960s. In or around 1985, Esso replaced Shell Oil as the station’s gasoline and diesel fuel supplier and also purchased three USTs — two gasoline and one diesel — underneath the station. Esso provided gasoline to the service station until October 2008, when it stopped supplying gasoline for retail stations generally and sold its equipment, including the USTs underneath the Dolores Service Station, to Total Petroleum. During the time that Esso was supplying the service station, the company replaced both the diesel and the gasoline USTs at least once. On October 6, 2008, plaintiffs sued Esso in the United States District Court for the District of Puerto Rico, alleging, inter alia, violations of the Solid Waste Disposal Act, as amended by RCRA, 42 U.S.C. §§ 6901-6992k, and related federal and Commonwealth environmental regulations. The complaint asserted that Esso’s failure to properly store and dispose of petroleum products had resulted in the discharge of hazardous waste, including benzene and other petroleum-related hydrocarbons, into the soil and groundwater below the Dolores Service Station. Plaintiffs averred that Esso had been aware of the contamination since at least 1993 but had not properly reported, investigated, mitigated, or remedied the situation. Plaintiffs sought injunctive relief and costs under RCRA. Then, on November 7, 2008, they requested a preliminary injunction, which defendants opposed. At the two-day hearing on December 2 and 3, 2008, both parties called several witnesses and introduced documents into the record. The district court issued its Preliminary Injunction Findings and Order on December 5. Crucially, the court found that the site underneath the Dolores Service Station had been contaminated with various petroleum-related substances, including Total Petroleum Hydrocarbon (TPH) and benzene, and potentially lead, for over a decade. The court concluded that Esso had known about this contamination since at least 1993, but had failed to investigate, report, or remediate the pollution. Accordingly, Esso appeared to be “in continuous violation” of federal and Commonwealth regulations. The injunction order required the parties to submit recommendations for companies that could perform a comprehensive site assessment to determine the nature and scope of the soil and groundwater contamination originating from petroleum products dispensed at the service station during Esso’s ownership of the tanks. The court then scheduled a hearing to “consider the implementation” of the environmental testing, and required the parties to promptly “jointly notify the EQB and the EPA” about the issuance of the injunction. Finally, the court enjoined Esso from contributing “by action or inaction” to further contamination at the site, and stated that “depending on the results” of the testing, that “Esso will be ordered ... to pay” for all of the necessary testing and remediation. The district court subsequently denied Esso’s motion for reconsideration, its request that the court require plaintiffs to post a bond for the estimated $75,000 cost of the Comprehensive Site Assessment, and its motion to stay enforcement of the injunction pending this appeal. B. Esso’s Appeal After losing below, Esso filed with this court an “emergency” motion to stay the preliminary injunction order pending its interlocutory appeal. In their opposition to Esso’s Motion to Stay, the plaintiffs contended that the stay was not warranted because “the trial on the merits was held” at the preliminary injunction hearing. We denied Esso’s request for a stay to the extent that it pertained to “the completion of a comprehensive site assessment and the completion of a remedial plan.” However, we granted the request “to the extent the district court order can be read to require defendant to undertake any remedial measures in advance of the preparation of a remedial plan, except as may become necessary to remedy any emergent threat to human health or safety.” We also directed the parties to confer and determine whether this appeal should be expedited. After we issued this order, the district court entered the following Notice: Regarding the Order by the Court of Appeals dated March 16, 2009, in Case No. 09-1211, this court states that, consistent with the Court of Appeals’ Statement, it was never our intention to require Defendant to undertake any remedial measures in advance of the preparation of a remedial plan, except as may become necessary to remedy any emergent threat to human health or safety. We strongly recommend that the appeal on the preliminary injunction be handled on an expedited basis as suggested by the Court of Appeals. Despite this notice, the district court never amended the preliminary injunction itself. On the parties’ motion, this appeal was expedited. Meanwhile, the comprehensive site assessment has been completed and, as of the time of oral argument on May 6, 2009, the parties were awaiting the reports that would reveal the nature and extent of any potential contamination at the site. Aside from the site assessment, however, it appears that discovery in the district court has been stayed pending this appeal. After Esso contacted plaintiffs to schedule a discovery conference pursuant to Rule 26 of the Federal Rules of Civil Procedure, plaintiffs responded with an “urgent” motion to stay all discovery, arguing that discovery was not warranted because the case “had already been heard” and the relevant documents had been “produced in open court” at the preliminary injunction hearing. II. A. Statutory and Regulatory Background Subchapter IX of RCRA regulates USTs. 42 U.S.C. §§ 6991-6991(m). Pursuant to this statutory authority, the Environmental Protection Agency (EPA) has promulgated a series of regulations that include provisions relating to UST registration, leak detection, notification, and cleanup requirements. See generally 40 C.F.R. Part 280. The EPA is also empowered to delegate UST program administration to a state if that state’s regulatory requirements are at least as stringent as their federal counterparts, 42 U.S.C. §§ 6991c, 6991g. It has delegated that task to Puerto Rico’s Environmental Qaulity Board (EQB), which is the entity responsible for administering the UST program. See 40 C.F.R. § 282.102(a). “The EQB is an administrative agency created by the Environmental Public Policy Act, 12 L.P.R.A. §§ 1121-1140a, to promote environmental and resource conservation.” Esso Std. Oil Co. v. Cotto, 389 F.3d 212, 213-14 (1st Cir.2004). Consistent with this federal delegation, the EQB’s Underground Storage Tank Program (USTP) is governed by a set of rules called the Puerto Rico Underground Storage Tank Control Regulations (USTCR), which were enacted on November 7, 1990. In March of 1998, the government of Puerto Rico and the EPA entered into a Memorandum of Agreement establishing the manner in which RCRA and the USTCR would be enforced. See 40 C.F.R. § 282.102. The EQB’s rules, like the federal UST regulations, are designed to prevent and detect releases from USTs, and correct the problems created by those releases. See Environmental Protection Agency, “Musts For USTs: A Summary Of Federal Regulations For Underground Storage Tank Systems,” EPA 510-K-95-002 (July 1995), available at http://www.epa.gov/OUST/ pubs/musts.pdf (last visited June 15, 2009). They impose a strict regime of monitoring, reporting, and remediation requirements, many of which are at issue in this litigation. B. Citizen Suits Under RCRA A common tool in federal environmental law, a citizen suit is “[a]n action under a statute giving citizens the right to sue violators of the law ... and to seek injunctive relief and penalties.” Black’s Law Dictionary 261, (8th ed.2004). “Typically, citizen suits, where they exist, function as a form of statutory enforcement in addition to, or in conjunction with, enforcement by an administrative agency or other governmental entity.” Esso Std. Oil Co. (Puerto Rico) v. Rodríguez-Pérez, 455 F.3d 1, 6 n. 2 (1st Cir.2006). 42 U.S.C. § 6972 enumerates the requirements for a citizen suit under RCRA. It provides that, subject to certain restrictions, a private citizen may commence a civil action on his own behalf: (a)(1)(A) against any person ... who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter; or (B) against any person ... including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment (emphasis added). Thus, a suit pursuant to subsection (a)(1)(A) must be based on an ongoing violation, whereas a suit under (a)(1)(B) may be predicated on a past violation which presents an “imminent and substantial endangerment to health or the environment.” Id.; see also Meghrig v. RFC Western, Inc., 516 U.S. 479, 484, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996). In either case, the Act empowers the district court to: enforce the permit, standard, regulation, condition, requirement, prohibition, or order, referred to in paragraph (1)(A), to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (1)(B), to order such person to take such other action as may be necessary, ... and to apply any appropriate civil penalties.... 42 U.S.C. § 6972(a). There are limitations on citizen suits under RCRA. First, citizen suits are subject to certain notice requirements. 42 U.S.C. § 6972(b)(1)(A) provides that a suit under (a)(1)(A) may not be commenced until sixty days after the putative plaintiff has notified the alleged violator and certain federal and state regulators; 6972(b)(2)(A) bars the commencement of citizen actions under (a)(1)(B) for ninety-days after the proper parties have been notified. However, if the action alleges a violation of subchapter III of the statute (which deals with the management of hazardous waste specifically), the 60- and 90-day limits do not apply, and a citizen may file suit immediately after notification. 42 U.S.C. § 6972(b)(1)(A), (b)(2)(A). Finally, the statute also bars citizen suits if either the EPA administrator and/or the state in which the alleged contamination is located is already pursuing certain judicial or administrative actions to achieve compliance with federal regulations. See 42 U.S.C. § 6972(b)(1)(B), (b)(2)(B), and (b)(2)(C). We discuss several of the notice and preclusion provisions in greater detail below. III. Esso raises a number of challenges to the district court’s preliminary injunction order. As a threshold matter, Esso raises several arguments which, if accepted, would divest us of jurisdiction over this appeal. Esso first claims that plaintiffs’ section 6972(a)(1)(A) and (a)(1)(B) claims are both barred by a civil action currently pending in the Southern District of New York (SDNY). That suit was brought by the Commonwealth of Puerto Rico against Esso and other defendants and includes claims under RCRA. Esso also alleges that the (a)(1)(B) claim is barred by RCRA’s 90-day notice provision. Plaintiffs dispute Esso’s jurisdictional challenges to their suit. They claim that because benzene, which they characterize as a known contaminant at the service station, is a “hazardous substance,” the ninety-day requirement of 42 U.S.C. § 6972(b)(2)(A) does not apply. Furthermore, they claim that the Commonwealth’s action against Esso in the SDNY is not sufficiently comparable to preclude the filing of this case. If we conclude that we do have jurisdiction over this appeal, Esso’s most fundamental concern is not that it has been ordered to pay for the comprehensive site assessment, but rather its perception that its “liability has been summarily determined without discovery, without the benefit of a trial on the merits, and without the protection of a bond.” Indeed, in its reply brief, Esso essentially admits that it likely would not have appealed if the injunction had been limited to ordering the comprehensive site assessment. Pursuing this theme, Esso draws upon not only the language of the opinion and order itself, but also on the court’s comments in subsequent rulings, to support the contention that the court essentially resolved the liability issue against Esso in the guise of a preliminary injunction. Esso also argues that the injunction is defective because the court refused to make findings in support of each element of injunctive relief as required by Rule 65 of the Federal Rules of Civil Procedure. Plaintiffs argue that the two-day hearing in the district court was adequate and provided a sufficient basis for the district court’s order and injunction. Indeed, they argue on appeal, as they did in certain district court filings, that “[t]he record is clear that a trial on the merits was held.” They characterize Esso’s “allegation that a trial on the merits was not held and is not forthcoming” as “simply misleading.” They add that “[a] hearing on the merits was conducted, the investigation of the contamination at the site has been completed. From the record in this case, it is clear that Esso’s USTs originated the contamination. Therefore, injunctive relief is proper as issued.” IV. We first consider Esso’s notice and preclusion arguments. Accepting either of them would divest us of jurisdiction. See, e.g., Garcia v. Cecos Int’l, Inc., 761 F.2d 76, 78-80 (1st Cir.1985) (dismissing appeal from denial of injunction under RCRA for want of jurisdiction due to plaintiffs failure to comply with notice requirements); Rodríguez-Pérez, 455 F.3d at 5-6 (1st Cir.2006)(analyzing question of whether RCRA citizen suit was precluded by administrative action as question of subject matter jurisdiction). A. Notice On July 24, 2008, the plaintiffs notified Esso, the EPA, the EQB, and the state and federal Attorneys General, that they intended to file a lawsuit pursuant to 42 U.S.C. § 6972(a)(1)(A) and (a)(1)(B). Esso only challenges the adequacy of plaintiffs’ notice with respect to its (a)(1)(B) claim. This is because 42 U.S.C. § 6972(b)(2)(A) prohibits the commencement of citizen actions under (a)(1)(B) until ninety days after the proper parties have been notified. By contrast, § 6972(b)(1)(A) allows a claim under (a)(1)(A) to be filed sixty days after notice was given. Plaintiffs commenced suit on October 7, 2008, which was more than sixty but fewer than ninety days after the notice letter was sent. Accordingly, it is only our jurisdiction over the (a)(1)(B) claim that is implicated by this argument. As a preliminary matter, we note that Esso did not present this notice argument to the district court in its opposition to plaintiffs’ motion for preliminary injunctive relief. However, because it relates to subject matter jurisdiction, Esso’s failure to present the notice argument to the district court is ultimately irrelevant, as we have an obligation to inquire into our own jurisdiction sua sponte. In re Olympic Mills Corp., 477 F.3d 1, 6 (1st Cir.2007) (citing Doyle v. Huntress, Inc., 419 F.3d 3, 6 (1st Cir.2005)). In its injunction findings, the district court merely stated, without further explanation, that “[n]otiee requirements have been met under 42 U.S.C. § 6972.” Nor is it clear from the district court’s opinion and order whether the injunction was issued pursuant to (a)(1)(A) (which would not implicate the notice issue), (a)(1)(B) (which would), or both. Nevertheless, that uncertainty ultimately does not matter, since we conclude that the plaintiffs complied with the notice requirements of RCRA in any event. The 90-day notice requirement does not apply if the citizen suit alleges a violation of subchapter III of the statute. 42 U.S.C. § 6972(b)(2)(A). Here, plaintiffs’ complaint specifically alleges that defendants improperly stored and disposed of hazardous waste “in violation of R.C.R.A. Sub-chapter III,” and that these actions contributed to an imminent and substantial endangerment to health or the environment. Accordingly, plaintiffs were authorized to file suit immediately after providing notice, and the fact that they did so before ninety days had elapsed does not divest us of jurisdiction over the (a)(1)(B) claim. B. The Diligent Prosecution Bar 1. General Principles Citizen suits under RCRA were meant to “supplement rather than to supplant governmental action.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). Accordingly, a citizen suit under either 42 U.S.C. § 6972(a)(1)(A) or (a)(1)(B) may be barred if a state or federal agency is diligently prosecuting an enforcement action against the same alleged violator, although the preclusion provisions for suits brought under (a)(1)(A) differ slightly from those applicable to (a)(1)(B) suits. Specifically, 42 U.S.C. § 6972(b)(1)(B) provides that a citizen suit under (a)(1)(A) is prohibited if a “State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States ... to require compliance with [the] permit, standard, regulation, condition, requirement, prohibition, or order” that the citizen suit seeks to enforce. Similarly, no action may be commenced under (a)(1)(B) “if the State, in order to restrain or abate acts or conditions which may have contributed or are contributing to the activities which may present the alleged endangerment ... (i) has commenced and is diligently prosecuting an action” under that subsection. 42 U.S.C. § 6972(b)(2)(C). Esso alleges that these statutory provisions, and a civil suit in the SDNY brought by the Commonwealth in which Esso is a defendant, divest the federal courts of jurisdiction over plaintiffs’ suit. We have never elaborated analytical principles for determining whether a civil action filed by a state under RCRA is sufficiently similar to a subsequent citizen suit so as to preclude it. Other courts, however, have confronted this or similar questions. Studying these precedents, one author has concluded that “most, but not all,” of those courts have held that: For the government action to bar a citizen suit, the government action must seek “to require compliance with the standard, limitation, or order” ... [that] the citizen alleges is violated----On its face, a government action bars citizen suits only for violations they seek to enforce in common .... [B]y specifying that the government action precludes a citizen suit only for the violations of the standard, limitation or order that they both allege and seek to abate, the provision implies that the government action does not preclude a citizen suit against other violations. That result is consistent with the policy of the provision; the notice and the delay period were intended to enable the government to have an opportunity to enforce against the violations of the standard, limitation or order alleged by the citizen, unencumbered by a citizen suit. Where the government has enforced against some, but not all of such violations alleged by the citizen, it has foregone its opportunity to foreclose the citizen from' enforcing against the violations the government chose to ignore. Jeffrey G. Miller, Theme mid Variations in Statutory Preclusions Against Successive Environmental Enforcement Actions by EPA and Citizens: Part One: Statutory Bars in Citizen Suit Provisions, 28 Harv. Env. L.Rev. 401, 473-74 (2004) (footnotes omitted) (emphasis omitted). We apply this insight here. 2. Esso’s Claim On June 12, 2007, the Commonwealth filed suit in the United States District Court for the District of Puerto Rico against various gasoline refiners and distributors, owners and operators of gasoline retail stations, and manufacturers of the gasoline additive methyl tertiary butyl ether (MTBE). The complaint alleges large-scale MTBE contamination of the “waters of the Commonwealth,” which it defines as “all Class SGI ground waters and all Class SD surface waters located on the main island.” The Commonwealth asserts claims for: strict products liability for defective design and failure to warn; nuisance; trespass; negligence; violations of the Puerto Rico Public Policy Environmental Act, Water Pollution Control Act, and Underground Storage Tank Control Regulations; violations of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); violations of the Toxic Substances Control Act; and, finally, violations of RCRA. The majority of the factual allegations in the complaint involve the defendants’ liability for the use of MTBE as a gasoline additive; indeed, the complaint notes that MTBE contamination was likely to result from “the normal and foreseeable storage, purchase, and use of gasoline within the Commonwealth.” The Commonwealth avers that, in addition to producing gasoline containing MTBE, the defendants also knowingly promoted, ■ marketed, and sold such gasoline in the Commonwealth despite their awareness that MTBE, a hazardous substance, would be released into the waters of the Commonwealth. The complaint seeks to recover damages to “fund the identification and treatment of MTBE contaminated waters used for public and private drinking water” and cover the costs of restoring those waters to their pre-discharge condition, as well as general “compensation for injuries to the waters of the Commonwealth.” Additionally, the Commonwealth requests' injunctive relief compelling defendants to investigate and remediate existing contamination and to prevent “further releases from their leaking underground storage tanks.” The Commonwealth’s RCRA claim specifically alleges violations of Rule 1102(A) and (B) of the Puerto Rico USTCR on the part of the “Owner/Operator Defendants,” which the complaint defines as those defendants who “owned or operated gasoline service stations and/or underground storage tanks that have discharged gasoline containing MTBE.” The claim seeks an order “enforcing the Puerto Rico Underground Storage Tank regulations” that would compel defendants to “investigate and repair and/or properly close all storage tanks ... which are leaking or pose a significant risk of leaking to ensure they do not leak MTBE or MTBE-containing substances into the Commonwealth’s soils, waters, and other natural resources,” and to “investigate, delineate, and remediate all soils, waters, and other natural resources impacted by MTBE originating from leading [USTs] ... so as to remove all detectable concentrations of MTBE.” On October 4, 2007, Esso was added as a defendant in the Commonwealth action. However, the complaint categorizes Esso as a “refiner/supplier” defendant; i.e., as a party that “refined, marketed, and/or otherwise supplied ... gasoline and/or other products containing MTBE that [it] knew or should have known would be delivered into the Commonwealth.” The Commonwealth does not allege that Esso is an owner or operator of a service station or UST. The problem of MTBE contamination is not limited to the Commonwealth; indeed, the problem has a national scope: MTBE is at the center of hundreds of lawsuits involving standard toxic tort issues-^-product liability claims involving personal injury, nuisance and trespass actions alleging property devaluation, and putative class actions seeking medical monitoring and emotional distress. While defendants in these suits usually represent a small set of producers and distributors of MBTE, plaintiffs include states, municipalities, and individuals. Today, MTBE litigation is a cottage industry of its own, with a specialized bar and a small circle of experts. Douglas A. Henderson & Mary K. McLemore, MTBE: A Tale of Air, Water, and Civil Procedure, 19 Nat. Resources & Env’t. 20, 20 (2004-2005). Because MTBE litigation is so prevalent, the Judicial Panel on Multidistrict Litigation has transferred a large number of actions raising similar allegations to the Southern District of New York for coordinated or consolidated pretrial proceedings. See 28 U.S.C. § 1407 (permitting transfer where “civil actions involving one or more common questions of fact are pending in different districts”). Judge Shira A. Scheindlin has now presided over MTBE cases for nearly a decade. On October 31, 2007, the Panel transferred the Commonwealth action to her court in the Southern District of New York; the transfer order indicated that it was the 152nd case to be so transferred. While Esso is correct that there may be some overlap between the Commonwealth’s suit and the case at bar, we find this overlap insufficient to divest us of jurisdiction over this case. First, comparing the RCRA claims only, the two complaints involve different contaminants (MTBE as opposed to benzene and other petroleum-related hydrocarbons), a distinction which other cases have found significant. See, e.g., A-C Reorganization Trust v. E.I. DuPont de Nemours & Co., 968 F.Supp. 423, 431-32 (E.D.Wis.l997)(holding that a consent order issued by the EPA did not preclude a citizen suit under RCRA where that consent order 1) did not necessarily contemplate the remediation of potential groundwater contamination, as opposed to surface contamination; and 2) did not address contaminants other than arsenic, whereas the citizen suit alleged the presence of other contaminants); Frilling v. Village of Anna, 924 F.Supp. 821, 837-39 (S.D.Ohio 1996) (allowing citizen suit under Clean Water Act (CWA) to proceed where Consent Order entered in state civil enforcement action sought to require compliance with federal parameters for only two of the six pollutants which citizen plaintiffs alleged had exceeded allowable levels); see also Maryland Waste Coal. v. SCM Corporation, 616 F.Supp. 1474, 1484 (D.Md. 1985). Moreover, in its complaint in the SDNY, the Commonwealth even explains that “the fate and transport of MTBE in the subsurface differs significantly from that of gasoline constituents that have historically been of environmental and/or toxicological concern, specifically the ‘BTEX compounds’ (benzene, toluene, ethylbenzene, and xylene),” compounds which are the subject of plaintiffs’ complaint. This difference means that, even though both compounds are components of gasoline, the areas affected by MTBE and BTEX contamination could potentially be different and/or require different remedial measures in case of a leak from a UST. Additionally, it is not evident from the face of the Commonwealth’s complaint that MTBE is a common diesel additive, whereas some of the allegations in the case at bar involve contamination resulting from an allegedly leaking diesel tank. The two complaints also allege distinct violations of Puerto Rico’s USTCR. The complaint in this action alleges violations of Rules 501, 503, 601, 602(A), (B), 603(A), 604(A), (C), and 606(A)(1)(3). In contrast, the Commonwealth accuses “all defendants with regulated facilities in the Commonwealth” of violating Rule 1102(A), (B), and (D). Aside from the difference in the specific rules that the two complaints seek to enforce, the Commonwealth’s RCRA action expressly implicates Esso in a different capacity than the instant action. The MTBE litigation names Esso as a “refiner/supplier” defendant that “refined, marketed, and/or otherwise supplied ... gasoline and/or other products containing MTBE that each such Defendant knew or should have known would be delivered into the Commonwealth.” The Commonwealth does not allege that Esso is one of the “Owner/Operator Defendants” whose alleged unlawful releases of MTBE-containing substances and failure to take appropriate precautions to prevent and/or control releases violated the UST Regulations. In this citizen suit, by contrast, Esso is named as the owner/operator of the USTs and alleged to be directly responsible for the contamination emanating from them. Furthermore, there is a question of scope. The Commonwealth’s suit is intended to protect the “waters of the Commonwealth” generally, and seeks significant compensation for damage that MTBE has inflicted upon those waters. In this case, we are dealing with the potential contamination and clean-up of one particular property, which may or may not be affected by MTBE contamination. In our view, a suit against dozens of defendants seeking to remedy the harm caused throughout the Commonwealth by one contaminant is notably different than an action asking one particular defendant to clean up a number of different contaminants on a single private property. Finally, we are not persuaded by Esso’s reference to potentially overlapping remedial obligations. Esso argues that plaintiffs’ suit is barred in part because the abatement of the MTBE contamination alleged in the Commonwealth action would “necessarily abate other gasoline constituents leaked into the same soil or groundwater.” However, it is not apparent from the pleadings in the two cases that the remedial measures for the various types of contamination are consistent; indeed, the SDNY complaint specifically alleges a difference in the nature of MTBE pollution and the pollution of other gasoline constituents. If, however, the remedy is identical, then whichever action is resolved first will obviate the need for the performance of that remedy in the other action. Given the magnitude of the MTBE litigation, it is almost certain that this case, which concerns only one site and is proceeding on an expedited basis, will reach the remedy stage first, perhaps even before the massive discovery is completed in the MDL. Any potential clean-up that the court may require in this case will either 1) remove the gasoline contamination generally from the affected site, and therefore any MTBE that it may have contained, or 2) remove or remediate only the pollutants at issue in this litigation. In the first case, the Dolores Service Station will simply be one less site for Esso to remediate in the MTBE litigation; in the second, it will need to do the same kind of remediation with respect to the MTBE that it would have in the absence of this citizen suit. Therefore, the Commonwealth’s continued prosecution of the SDNY action would not represent a waste of enforcement resources or a duplication of efforts, which is what Congress was trying to avoid with the preclusion provisions. Alternatively, in the event that the remedies somehow conflict, the parties are free to seek modification of the relevant injunction; there is no need, at this stage, to “short circuit” this suit on jurisdictional grounds. See, e.g., Me. People’s Alliance v. Holtrachem Mfg. Co., LLC, No. CIV-00-69-B-C, 2001 WL 1602046, at * 8 (D.Me. Dec.14, 2001) (Kravchuk, Mag. J.) (noting, in the context of a primary jurisdiction analysis, that “on the state of the current record,” the potential conflict between a regulatory decree and eventual court-ordered remediation was “not so inherent and tangible so as to justify short circuiting this congressionally authorized citizen suit on primary jurisdiction grounds” because, “when and if this Court and the parties arrive[d] at a remedy phase, the conflict concern [could] be revisited”).' V. A. Standard of Review and Preliminary Injunction Law We review the grant of a motion for a preliminary injunction for abuse of discretion. Boston Duck Tours, LP v. Super Duck Tours, LLC, 531 F.3d 1, 11 (1st Cir.2008). More specifically, we review findings of fact for clear error and conclusions of law de novo. Id. We will set aside a district court’s ruling as to preliminary injunctive relief “if the court clearly erred in assessing the facts, misapprehended the applicable legal principles, or otherwise is shown to have abused its discretion,” Wine and Spirits Retailers, Inc. v. Rhode Island, 418 F.3d 36, 46 (1st Cir.2005), bearing in mind that, in general, trial courts have wide discretion in making judgments regarding the appropriateness of such relief. Charlesbank Equity Fund II v. Blinds To Go, Inc., 370 F.3d 151, 158 (1st Cir.2004). An error of law is always an abuse of discretion. Id. A preliminary injunction “is traditionally viewed as relief of an extraordinary nature and does not purport to be a disposition of the matter on its merits.” United States v. School Dist. of Omaha, 367 F.Supp. 179, 193 (D.Neb.1973); see also Benson Hotel Corp. v. Woods, 168 F.2d 694, 696 (8th Cir.1948) (“The application for [a preliminary] injunction does not involve a final determination on the merits; in fact, [its] purpose ... is not to determine any controverted right, but to prevent a threatened wrong or any further perpetration of injury ... [,] and thus to protect property or rights ... until the issues can be determined after a full hearing.”). Accordingly, in determining whether to grant a preliminary injunction, the district court must consider the following factors: first, the likelihood that the party requesting the injunction will succeed on the merits; second, the potential for irreparable harm if the injunction is denied; third, the hardship to the nonmovant if enjoined compared to the hardship to the movant if injunctive relief is denied; and fourth, the effect of the court’s ruling on the public interest. Water Keeper Alliance v. U.S. Dept, of Defense, 271 F.3d 21, 30 (1st Cir.2001) (citing Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16 (1st Cir. 1996)). A court granting a preliminary injunction must set forth the findings of fact and conclusions of law supporting its issuance. Fed.R.Civ.P. 52(a)(2). We have vacated preliminary injunctions that fail to include such findings. See, e.g., TEC Eng’g Corp. v. Budget Molders Supply, Inc., 82 F.3d 542, 545 (1st Cir.1996) (vacating injunction for failure to comply with this requirement and noting that on remand “the district court w[ould] have to apply the four-part preliminary injunction test and set forth the basis for its ruling on each prong”). Furthermore, Rule 65(d)(1) of the Federal Rules of Civil Procedure requires that every injunction order: “(A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail — and not by referring to the complaint or other document-the act or acts restrained or required.” Fed.R.Civ.P. 65(d)(1). “[T]he federal courts have been very careful to give [Federal Rule 65(d)] full effect. [Its] requirements ... have been treated as mandatory, and even emergency conditions have not warranted a departure from them.” 11A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2955 (2009). An order that fails to comply with the prerequisites of Rule 65(d) should be set aside on appeal. Id. Rule 65(a)(2) also provides a procedural mechanism for consolidating a preliminary injunction hearing with the trial on the merits. See Fed.R.Civ.P. 65(a)(2). However, the real “hazards inherent in fully disposing of cases in such an expedited fashion-among them incomplete coverage of relevant issues and failure to present all relevant evidence,” have led courts to demand “indisputably clear notice” to the parties before approving such consolidation. Caribbean Produce Exch., Inc. v. Sec’y of Health & Human Servs., 893 F.2d 3, 5 (1st Cir.1989) (reversing the final disposition of the case on the merits after preliminary injunction hearing because district court had failed to notify the parties of its intent to do so and therefore they had been “operat[ing] on the assumption that only the preliminary injunction was at stake”); see also 11A Wright, Miller, & Kane, Federal Practice and Procedure § 2950 (2009) (“[O]rdering consolidation during the course of a preliminary injunction hearing is reversible error when little or no notice is given of this change and the effect is to deprive a party of the right to present his case on the merits.”). When a trial court “disposes of a case on the merits after a preliminary-injunction hearing without expressly ordering consolidation ... it is likely that one or more of the parties will not present their entire case at an unconsolidated preliminary-injunction hearing.” Id. Therefore, it is ordinarily improper to decide a case solely on such a basis. As the Second Circuit wrote: The judge’s legal conclusions, like his fact-findings, are subject to change after a full hearing and the opportunity for more mature deliberation. For a preliminary injunction — as indicated by the numerous more or less synonymous adjectives used to label it — is, by its very nature, interlocutory, tentative, provisional, ad interim, impermanent, mutable, not fixed or final or conclusive, characterized by its as-for-the-time-beingness. It serves as an equitable policing measure to prevent the parties from harming one another during the litigation; to keep the parties, while the suit goes on, as far as possible in the respective positions they occupied when the suit began. Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 742 (2d Cir.1953) (Frank, J.) Consequently, it is inappropriate for the court, at or after a preliminary injunction hearing, to “make findings of fact or conclusions of law that go beyond what is necessary to decide whether a preliminary injunction should be issued.” 11A Wright, Miller, & Kane, Federal Practice and Procedure § 2950. B. Analysis of the District Court Proceedings The district court here was not mindful of the limitations of a preliminary injunction proceeding. A review of the record reveals that the district court impermissibly prejudged the merits of the case at the preliminary injunction stage and, having reached a conclusion as to liability, determined that it was unnecessary to do the full preliminary injunction analysis. This conclusion flows inevitably from the district court’s explanation of its preliminary injunction order and its statements in the post-injunction proceedings. 1. The Injunction Opinion and Order The court began by reciting a number of factual findings. It found that Esso had, until October of 2008, “operated” the service station and owned one diesel and two gasoline USTs, as well as related pumps, pipelines, and servicing equipment, on the property. In 1992, Esso replaced the existing steel diesel UST with a fiberglass tank, as it did for the two steel gasoline tanks in 1998. In connection with the 1998 replacement of the gasoline USTs, Esso also removed some of the soil surrounding the tanks. The district court expressed concern that lead contamination had potentially occurred during this 1998 tank replacement, finding that the steel tanks had held leaded gasoline for many years before unleaded gasoline became available in 1988. The court stated that Esso’s excavation and disposition of the soil and its failure to acknowledge the possibility that the soil was contaminated reflected “willful blindness” indicative of a potential RCRA violation. Besides the potential for lead contamination, the district court also found that “the service station facility and equipment discharged hazardous petroleum-related products and discarded hazardous waste and related contaminants” into the surrounding soils and groundwater. The court concluded that Esso had known about the contamination since at least 1993. The court then observed that in November 2001, Esso hired Environmental Resource Technologies (ERTEC) to perform a subsoils evaluation of the site, the results of which became available in November 2003. The report found levels of Total Petroleum Hydrocarbon (TPH) of 3,290 mg/kg in the soil above the groundwater surrounding the diesel tank, which exceeded the acceptable 100 mg/kg limit set by EQB. The report further recommended that the diesel tank and pipeline be tested in accordance with EQB regulations, a test which, the court found, was never performed. In September 2006, Esso again hired ERTEC, this time to perform an assessment known as a Phase II Environmental Evaluation. The ensuing report indicated that the groundwater below the service station was contaminated with benzene, a hazardous petroleum-related hydrocarbon which is heavily regulated by the EPA due to its known carcinogenic properties. The court noted that, although federal regulations establish a Maximum Contaminant Level (MCL) for benzene of 5 mg/1 in groundwater and .5 mg/1 in drinking water, the Phase II report revealed concentrations as high as 2,800 mg/1. The report concluded that the contamination was “apparently related” to discharges emanating from the southeast area of the site, where the USTs are located, and the northeast area, which contains the grease traps. According to the district court, a review of the EQB UST Program File for the Dolores Service Station confirmed that Esso had never reported the contamination documented in the Phase II report to the EQB, and this “non-reporting” likely explained why the station was not listed in the EQB’s Leaking Underground Storage Tank facility list. The court determined that Esso had never conducted the tests required to investigate the extent of the petroleum-related contamination or performed an “organic lead analysis” on the property. For this reason, the court concluded that Esso had “distanced itself from its duty to confront the contaminated status of the property and ha[d] only taken bland mitigation measures, without committing itself to removing the contamination as required.” In sum, the court stated that Esso “appealed] to be in continuous violation[ ]” of EQB rules and their federal counterparts, and that Esso’s “derelict” conduct bordered on “egregious,” reflecting a goal to “hopefully duck legal responsibility or have others, such as the Plaintiffs or another incoming petroleum company, deal with the problem generated by Esso’s actions.” It noted that the “costs associated with pre-cleanup studies and actual cleanup can reach astronomical monetary figures, and Esso must bear responsibility as required by law.” After making these factual and legal findings, the district court explicitly stated that it saw “no need to make a boilerplate exposition of irreparable harm and injunction law, because it is patently clear that this case fit[ ] the most restrictive measure for that remedy.” The actual order itself directed the parties to submit recommendations for companies that could perform a comprehensive site assessment “before the court further orders Esso to remediate soil and groundwater contamination at the site originating from ... petroleum-based products dispensed” at the service station between 1982 and October 31, 2008. The court then scheduled a hearing to “consider the implementation” of the comprehensive site assessment “at Esso’s expense.” The order concluded by declaring: In addition, and subject to the results of the scheduled ... hearing, Esso is not only enjoined and restrained from contributing by action or inaction to further environmental contamination at the site, but Esso will be ordered, depending on the results of the Comprehensive Site Assessment, to pay for all necessary testing, corrective actions, and removal of all pollution and contamination within the site and into adjacent areas as previously described. 2. PosD-Injunction Proceedings On December 19, 2008, Esso moved for reconsideration of the preliminary injunction order pursuant to Fed.R.Civ.P. 59, asking the court to modify certain factual findings, including the determination that Esso would be responsible for paying for all of the necessary testing, corrective actions, and removal of contamination within and adjacent to the site. Three days later, at a hearing on December 22, 2008, the court denied Esso’s motion for reconsideration without explanation. Also at the December 22 hearing, the district court selected a site assessment team made up of court-approved experts from both sides and ordered that the bills for the work performed be submitted to the court for payment by Esso. Carlos Alvarez, an expert hired by plaintiffs to assist with the site assessment, estimated that the assessment would cost between $50,000 and $75,000, which was consistent with the $75,000 estimate offered by Jose Hernandez, Esso’s expert. The court entered a scheduling order indicating that it would meet with counsel and the experts to discuss the comprehensive site assessment on January 15, 2009. On January 14, 2009, the day before the first status conference, Esso asked the court to require plaintiffs, pursuant to Fed.R.Civ.P. 65(c), to post a bond in the amount of $75,000 to cover the anticipated cost of the site assessment. In a written opinion denying the motion issued the next day, the court characterized Esso’s request as predicated upon “the fact that the court has ordered Esso to pay for the comprehensive site assessment that will let ... the court know the extent of the documented environmental damage caused by Esso’s use of the [station] for the sale of gasoline and petroleum-based products for a good number of years.” (Emphasis added.) The court stated that it would “dispense with security altogether, because the grant of the preliminary injunction carrie[d] no risk of monetary loss” for Esso in the face of the “documented” contamination resulting from Esso’s “violation of regulatory safeguards designed to prevent environmental contamination and pollution that adversely affect[ed] not only Plaintiff, but the general public.” The only issue, the court stated, “was the extent of the contamination and the extent of measures to be taken to remedy the situation.” Because Esso was liable “as a matter of law for any contamination and environmental damage resulting while it had the service station under its direct supervision and control,” the court perceived no risk of monetary loss to Esso that would necessitate the posting of a bond: “the only issue seem[ed] to be the extent of the liability.” Indeed, the court characterized Esso’s expenditures associated with “the court’s effort to fairly determine the extent of Esso’s liability” (i.e., the site assessment) as “de minimis,” and stated that they paled in comparison to the public interest in remediating damage to the environment. The district court also denied, on similar grounds, Esso’s January 30, 2009 request to stay enforcement of the preliminary injunction pending this interlocutory appeal. The court repeated its conclusion that Esso had violated federal environmental regulations, listing six actions that Esso had “failed” to take in contravention of those regulations. Finally, the court noted that Esso had “participated fully in proceedings to fashion interim measures,” (presumably a reference to the comprehensive site assessment). It thus found the stay motion “to be a belated delay tactic employed in bad faith.” 3. Analysis We acknowledge that the district court used some qualifying language in its various opinions. It occasionally described Esso’s conduct as “apparent” violations, stated that the injunction hearing had yielded a “limited” record, and characterized the nature of the relief it awarded as “preliminary.” Additionally, as we have mentioned, in response to our ruling on Esso’s emergency Motion to Stay, the district court issued a Notice stating that it was never its intention “to require Defendant to undertake any remedial measures in advance of the preparation of a remedial plan, except as may become necessary to remedy any emergent threat to human health or safety.” Nevertheless, the court failed to amend the injunction order itself, which remained intact, and the court’s nominal references to the preliminary nature of the proceedings do not undermine the overwhehning impression, conveyed by the portions of the record quoted above, that the court has already conclusively resolved the liability issue against Esso. The result was a “de facto” consolidation, without notice, which we cannot condone. See, e.g., T.M.T. Trailer Ferry, Inc. v. Union De Tronquistas De P.R., Local 901, 453 F.2d 1171, 1172 (1st Cir.l971)(even where there was “no indication that [a party] would have produced further testimony if notified earlier that the entire case would be disposed of’ after the preliminary injunction hearing, this did not “sanction the court in changing, sub silentio, the nature of the game at halftime”). The evidence of the court’s conclusive determination of liability is inescapable. In addition to the language used in its findings and the order itself, the district court explicitly refused to consider the other factors of the preliminary injunction analysis, stating that it saw “no need to make a boilerplate exposition of irreparable harm and injunction law” because it was “patently clear” that injunctive relief was warranted in this case. The district court’s refusal to address these other factors, in contravention of the requirements of Rule 65(d)(1), was a clear error of law. This refusal also confirmed that the court had already decided that the plaintiffs had prevailed on the merits, not merely that they were “likely” to do so. That same conclusive determination of liability pervades the court’s denial of Esso’s request for a bond: The comprehensive site assessment that has been ordered is the only way in which the court will be able to determine the extent of Esso’s liability, and the cost of such studies cannot serve as a basis for a claim of probable loss or monetary loss to Esso. No material damage to Esso will result from this litigation, where the only issue seems to be the extent of the liability. Here again the court announces that Esso’s liability for the pollution at issue, whatever its scale, has been decided in the preliminary injunction proceedings. As we have described, the purpose of a preliminary injunction is to preserve the status quo before the merits have been resolved. Certainly, the traditional four-part inquiry requires that a court make some assessment of the plaintiffs’ likelihood of success on the merits. But these assessments should only aid the court in deciding whether some type of interim relief is necessary. Ultimate findings of liability “should be made only after all parties have had ample opportunity to employ the liberal discovery processes offered by the Federal Rules and to otherwise prepare the matter in detail for presentation to [the] Court in a manner conducive to sound and deliberate legal determination.” School Dist. of Omaha, 367 F.Supp. at 194; Benson Hotel Corp., 168 F.2d at 698. Despite plaintiffs’ representations to the contrary, Esso has not yet had that opportunity. Because the court’s ultimate findings of liability were made before Esso had the benefit of the process which it was due, the injunction, as issued, cannot stand. VI. Although we conclude that the preliminary injunction order is defective for the reasons enumerated above, we find one aspect of the injunction — ordering the comprehensive site assessment — to be both proper and commendable. We have stated that RCRA is a “cradle-to-grave statute providing a full range of remedies designed to protect both health and the environment.” United States v. Borowski, 977 F.2d 27, 31 (1st Cir.1992). RCRA’s citizen suit provision expressly grants district courts broad equitable powers “to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (1)(B), to order such person to take such other action as may be necessary, or both.” 42 U.S.C. § 6972(a). Congress “intended that the injunctive provision have a rather broad scope.” Comite Pro Rescate De La Salud v. P.R. Aqueduct and Sewer Auth., 888 F.2d 180, 185 (1st Cir.1989). This broad scope means that a private citizen may seek “a mandatory injunction, i.e., one that orders a responsible party to ‘take action’ by attending to the cleanup and proper disposal of toxic waste, or a prohibitory injunction, i.e., one that ‘restrains’ a responsible party from further violating RCRA.” Meghrig, 516 U.S. at 484, 116 S.Ct. 1251. This broad scope includes mandatory preliminary injunctions. Even though preliminary injunctive relief is typically intended to preserve the status quo, the status quo in cases of potential environmental contamination is not a “condition of rest,” but one “of action which, if allowed to continue or proceed unchecked and unrestrained, will inflict serious irreparable injury.” United States v. Price, 688 F.2d 204, 212 (3d Cir.1982) (quotation marks and citation omitted). Thus, the fact that “an injunction may require the payment or expenditure of money” does not foreclose the possibility of equitable relief; “[t]he funding of a diagnostic study ..., though it would require monetary payments, would be preventive rather than compensatory.” Id. Accordingly, the Third Circuit in Price recognized that a district court, in appropriate circumstances, would have the authority to order a diagnostic environmental study, funded by the defendant, in the context of preliminary injunctive relief. Other courts have agreed. See, e.g., Bayless Inv. & Trading Co. v. Chevron USA, Inc., No. 93C704, 1994 WL 1841850, at *4-5, (D.Ariz. May 25, 1994); Lincoln Props., Ltd. v. Higgins, No. S-91-760DFL/GGH 1993 WL 217429, at *16 (E.D.Cal. Jan. 21, 1993). As a result of the court order in this case, there has already been extensive testing of the soil and groundwater surrounding the Dolores Service Station. Almost immediately after issuing the injunction, the district court selected a team of experts approved by the litigants to conduct an exhaustive analysis that would determine the nature and extent of any contamination in the area. According to a report filed in the district court on May 17, 2009, and consistent with the parties’ representations at oral argument, extensive sampling data has already been provided to approved chemists for analysis, validation, and certification. Final sampling was scheduled to take place in the second half of May, and the parties are working on a final report for the court. The results of this study will benefit not only the parties and the court as this litigation proceeds, but also the public. Indeed, Esso itself is candid in its reply brief that “if the court-ordered study were really the extent of the court’s injunction, this would be a different, and probably nonexistent, appeal.” Counsel for Esso expressed a similar sentiment at oral argument. We applaud the court for taking this sensible step. We understand the court’s legitimate concerns about the possibility of extensive environmental contamination and its health effects. See Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 545, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) (“Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable.”) We also recognize the integral role of our district courts in enforcing comprehensive federal and state environmental statutes. See Me. People’s Alliance and Natural Res. Def. Council v. Mallinckrodt, Inc., 471 F.3d 277, 296 (1st Cir.2006). We do not lightly vacate a prehminary injunction issued by a district court when the public interest in the relief sought is so substantial. But not even the expansive equitable powers of the courts to remediate environmental harm can excuse the district court’s premature determination of the merits of the plaintiffs’ claims against Esso. Accordingly, we must vacate provision 5 of the preliminary injunction order of the district court because it reflects an improper adjudication of the merits of the dispute. However, we affirm the district court’s decision as to provisions 1 through 4 on page 9 of the district court order. The first three provisions pertain to the administration of the comprehensive site assessment. The fourth provision relates to notice to the EQB and the EPA. Because we are affirming the portion of the order that requires Esso to pay money, and because the district court’s prior decision to deny Esso’s request for a bond was based on its premature adjudication of liability, we also instruct the district court to reconsider Esso’s request for a bond based on the requirements of Federal Rule 65(e). Once the district court has received the results of the environmental analysis of the site, it should address the merits of plaintiffs’ case, subject to the applicable rules of discovery. We express no position on how that matter should ultimately be resolved. We also wish to make clear that nothing in this opinion forecloses the district court’s ability to order further preliminary injunctive relief, such as further testing, or remediation of conditions that imminently threaten public health and safety, so long as any such relief is consistent with this opinion, the Rules of Civil Procedure, and our case law. Affirmed in part, vacated in part, and remanded for further proceedings consistent with this opinion. Each party shall bear its own costs. . The record contains contradictory information regarding when exactly Esso purchased the USTs and began supplying the station; the parties' briefs on appeal state that this occurred in 1985 and the complaint alleges a date of 1984, but the district court found that the sale took place in 1982. Ultimately, however, this discrepancy is irrelevant to this appeal. . At the injunction hearing, counsel for Esso informed the court that the contract between Esso and Total Petroleum contains provisions regarding the assignment of liability for preexisting contamination. This document, however, is irrelevant for our purposes. While Esso denies its responsibility for any alleged contamination at the site, it does not claim that it is an inappropriate defendant. . In the alternative, plaintiffs contend that by presenting “undisputed” evidence of contamination and Esso’s responsibility and failure to remediate, they established a likelihood of success on the merits. This is a direct response to Esso’s brief, which argues that plaintiffs’ failure to make the requisite showing of likelihood of success on the merits renders the injunction improper. However, because our disposition of this case prevents us from reaching the question of likelihood of success, we do not describe the parties’ arguments on this topic. . In their brief, plaintiffs raise an alternative argument for why the SDNY action does not preclude this citizen suit. They contend that, because the Commonwealth's pre-litigation notice in the SDNY litigation fails to allege a RCRA violation, that claim is improperly asserted and therefore may not preclude this suit. In light of our holding above, we need not reach this argument. . See also Indus. Bank of Wash. v. Tobriner, 405 F.2d 1321, 1323-24 (D.C.Cir.1968) (holding that to the extent that the findings and conclusions of the district court “purported to settle finally the questions of law and fact raised by the complaint, those findings and conclusions went beyond the determination the judge was called upon to make” in a preliminary injunction proceeding, and therefore would not be regarded as binding in further proceedings). . This seems to be an error on the part of the district court. While Esso supplied the station's petroleum-related products and was a UST operator for the purposes of the applicable environmental regulations, it is undisputed that the Sánchez family, and not Esso, was the service station operator. . To support this conclusion, the court cites, but does not discuss "Plaintiffs’ Exhibit One." Exhibit One, introduced at the injunction hearing, is the report of plaintiffs' expert, Carlos Belgodere. The report states that "The soils and groundwater monitoring data ... indicate that Esso knew of soil and groundwater contamination below the facility UST's [sic] as early as April 23, 1993.” This conclusion, in turn, appears to be based on a table in a report that was created for Esso during the 1998 tank change process. The table contains monthly data from three monitoring wells that Esso had installed on the property in 1993. Neither the expert report, nor the court's opinion, explains how these figures demonstrate Esso’s knowledge of contamination, or the kind of contamination involved. . The court’s actual finding with respect to benzene was expressed in the present tense. It stated that the Phase II evaluation "revealed that the groundwater below the Esso Dolores Service Station is contaminated with the gasoline constituent benzene” (emphasis added). . See, e.g., Safe Drinking Water Act, 42 U.S.C. §§ 300f-300j-26; United States Environmental Protection Agency, "Consumer Factsheet on: Benzene,” http://www.epa.gov/ogwdw/ contaminants/dw_contamfs/benzene.html (last visited June 10, 2009). . The court noted that ERTEC, Esso’s contractor, might be disqualified from performing such an assessment. No party has challenged on appeal the district court’s disqualification of ERTEC, and we take no position on the matter, leaving it to the district court's discretion. . See, e.g., H & W Indus., Inc. v. Formosa Plastics Corp., USA, 860 F.2d 172, 178-79 (5th Cir.1988) (holding that district court abused its discretion by denying a preliminary injunction "based upon its ruling on the underlying merits of the case” and thereby rendering a sua sponte summary judgment; instead, "grant or denial of a preliminary injunction must be the product of a reasoned application of the four factors held to be necessary prerequisites”); Progress Dev. Corp. v. Mitchell, 286 F.2d 222, 233 (7th Cir.1961) (rejecting defendants’ argument that summary judgment was appropriate at preliminary injunction stage because "lengthy hearings and extensive record demonstrate^] that a full hearing ... was held” and finding error in district court’s decision to "pass on the merits of the case on the basis of a preliminary hearing on a motion for temporary injunction”). . Although we have decided to vacate portions of the preliminary injunction order, we note that any admissible evidence that the district court received on the preliminary injunction motion has already become a part of the trial record and need not be repeated at trial. See Fed.RXiv.P. 65(a)(2). . Of course, the district court also has the power to enforce any permit, standard, regulation, condition, requirement, prohibition, or order referred to in subsection (a)(1)(A), and the plaintiffs may continue to seek such enforcement. . See also Subcommittee on Oversight and Investigation of The H. Comm, on Interstate and Foreign Commerce, 96th Cong, Report on Hazardous Waste Disposal 32 (Comm. Print 1979)(noting that this provision was intended to confer "overriding authority to respond to situations involving a substantial endangerment to health or the environment”). . See, e.g., Otis Elevator Co. v. Int’l Union of Elevator Constructors, Local 4, 408 F.3d 1, 10 (1st Cir.2005) (affirming only one aspect of preliminary injunction order and vacating the remainder); Auburn News Co. v. Providence Journal Co., 659 F.2d 273, 274 (1st Cir.1981) (same). . See Fed.R.Civ.P. 65(c) ("The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” (emphasis added)); 11A Wright, Miller, & Kane, Federal Practice & Procedure, § 2954 (2d ed. 2009) (“[Rule 65(c) ]) is phrased in mandatory terms and the conclusion seems inescapable that once the court decides to grant equitable relief under Rule 65 it must require security from the applicant ... In fact, ... a district court's failure to require the posting of a bond or other security has been held reversible error.” (footnotes omitted).

Rattlesnake Coalition v. U.S. Environmental Protection Agency

GOULD, Circuit Judge: The Rattlesnake Coalition (“The Coalition”) appeals the district court’s dismissal for lack of subject matter jurisdiction and lack of standing of its action against the United States Environmental Protection Agency (“the EPA”), the Administrator of the EPA, and the City of Missoula (“Mis-soula”). The Coalition brought suit under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, seeking in-junctive, declaratory, and other relief related to the preparation of Environmental Assessments (“EAs”) and Environmental Impact Statements (“EISs”) prior to implementation of the Missoula Wastewater Facilities Plan Update (“MWFPU”). The Coalition argues that the district court erred by evaluating its complaint as two separate NEPA claims relating to two constituent projects of the MWFPU, and thereby concluding that the MWFPU itself was not a single, major federal action subject to NEPA regulations. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court. I In the 1980s Missoula planned and made many improvements to its wastewater treatment and collection system. In 1995, Missoula created the Wastewater Advisory Group, consisting of representatives from city and county departments, to lead the efforts to update the 1984 wastewater treatment plan. In 1999, Missoula published the MWFPU, which identified improvements necessary over a fifty-year period and suggested the implementation of several projects costing more than $88 million. MWFPU’s goals included developing plans for wastewater treatment to protect the Clark Fork River and for serving un-sewered areas with a wastewater collection and treatment system. Federal funds were not used in the creation of MWFPU. In 1998, Missoula applied for a grant of $5 million from the EPA to support completion of the wastewater treatment plant upgrade (“WTPU”), a constituent project of MWFPU. The EPA awarded the grant on September 21, 1998, subject to the EPA’s NEPA review. The NEPA review consisted first of the EPA’s adoption of an EA prepared by the Montana Department of Environmental Quality (“DEQ”) to assess the environmental impact of the projects identified in MWFPU. Aso, on June 6, 2000, the EPA signed a Finding of No Significant Impact (“FONSI”) for MWFPU, which it published in the Mis-soulian newspaper on June 18, 2000. The EPA received no significant comments regarding the FONSI, and on July 31, 2000, the EPA notified Missoula of its final approval of MWFPU for purposes of the $5 million grant. From November 29, 2000 to September 8, 2003, the EPA dispensed all of the $5 million grant. Missoula completed the WTPU in October 2004, expending the entirety of the federal grant in the completion of the project. In 2004, the United States Congress appropriated to the EPA $500,000 earmarked for Missoula’s Rattlesnake Sewer Project (“RSP”). On May 6, 2004, the EPA regional office advised Montana DEQ that the EPA 'would undertake a NEPA review specific to the RSP. On July 27, 2004, Missoula applied to the EPA for a grant of the money from the 2004 appropriation. On May 7, 2004, the Coalition filed a complaint against the EPA and Missoula alleging that the EPA should have prepared an EIS on both the WTPU and the RSP. The Coalition sought declaratory, in-junctive and other relief against the EPA and Missoula to prevent Missoula from taking any action related to the planned construction of the RSP until the EPA complied with NEPA. Both the EPA and Missoula filed Federal Rule of Civil Procedure 12(b)(1) motions to dismiss for lack of subject matter jurisdiction. The district court granted both defendants’ motions, concluding that Mis-soula’s MWFPU was not a major federal action triggering NEPA’s application. The district court interpreted the Coalition’s complaint as alleging two separate NEPA violations: one relating to the WTPU grant and one relating to the application for RSP funding. The district court concluded that the Coalition did not have constitutional standing with regard to the $5 million grant to Missoula in 1998 for the WTPU, concluding that any harm it suffered was not redressable because the upgrades were complete and the federal funds were expended. As for the 2004 RSP appropriation, the district court ruled that it lacked subject matter jurisdiction because the EPA had not taken a final agency action as required to trigger application of NEPA. The district court also concluded that it lacked subject matter jurisdiction to hear the Coalition’s claims against Missoula. The district court based its dismissal on the fact that Missoula, as a non-federal actor, was not subject to the requirements of NEPA. The district court further held that the Coalition lacked standing to bring the action because Missoula could finance the construction of the RSP solely with state funds and avoid NEPA requirements altogether. On September 30, 2005, the district court filed an order dismissing the case against both Missoula and the United States for lack of standing and lack of subject matter jurisdiction. The Coalition timely appealed. II We review de novo a district court’s dismissal for lack of subject matter jurisdiction. Luong v. Circuit City Stores, Inc., 368 F.3d 1109, 1111 n. 2 (9th Cir.2004). The district court’s factual findings relevant to its determination of lack of subject matter jurisdiction, however, are reviewed for clear error. United States v. Peninsula Communications, Inc., 287 F.3d 832, 836 (9th Cir.2002). We also review de novo a district court’s determination of a party’s standing to bring suit. Buono v. Norton, 371 F.3d 543, 546 (9th Cir .2004). III Preliminarily, the United States argues that the Coalition waived its ability to oppose the district court’s rulings by failing in its opening brief to challenge the district court’s determination that (1) the Coalition lacked standing because any injury it suffered from the WTPU is not re-dressable, and (2) the district court lacked jurisdiction over disposition of the claim regarding the RSP because there has been no final agency action by the EPA. We reject this argument because the Coalition challenged both of the district court’s findings in its opening brief. The Federal Rules of Appellate Procedure require that a brief contain the “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.... ” Fed. R.App. P. 28(a)(9)(A). Issues raised in an opening brief but not supported by argument are considered abandoned. Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir.1992); Int'l Union of Bricklayers & Allied Craftsman Local Union No. 20, AFL-CIO v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.1985) (“[W]e will not ordinarily consider matters on appeal that are not specifically and distinctly raised and argued in the appellant’s opening brief.”). The Coalition’s opening brief challenges both of the district court’s rulings in the body of its opening brief. The Coalition’s discussion of what constitutes a major federal action under NEPA and its argument that the district court should have evaluated the MWFPU as a single, major federal action instead of separately evaluating the WTPU and the RSP, constitute a challenge to the district court’s dismissal for lack of standing. The Coalition also contends in its opening brief that the EPA waived sovereign immunity under the Administrative Procedure Act (“APA”) so that NEPA provides jurisdiction for this action. The Coalition’s opening brief mounts an attack on both of the district court’s rulings. We therefore reject the waiver argument presented by the United States and proceed to analyze the Coalition’s appeal. IV We first address the Coalition’s claim that the district court erred in evaluating the complaint as containing two separate NEPA claims involving two distinct projects. The Coalition argues that the district court should have evaluated the MWFPU to determine if it, and not its constituent projects, was a single, major federal action. The Coalition contends that had the district court found MWFPU to be a major federal action, it would have found that the Coalition’s injury was re-dressable in the form of adequate environmental review of the uncompleted portion of the MWFPU in accordance with NEPA and a stay of further construction of the project until that review is completed. The Coalition’s argument fails, however, because there is insufficient federal control over MWFPU to make it a major federal action under NEPA. To trigger the application of NEPA, an action must be “federal.” 42 U.S.C. § 4332(2)(C); see also 40 C.F.R. § 1508.18(a) (“Actions include new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies_”) (emphasis added). While “[tjhere are no clear standards for defining the point at which federal participation transforms a state or local project into major federal actionf,]. ... ‘[m]arginal’ federal action will not render otherwise local action federal.” Almond Hill Sch. v. U.S. Dep’t of Agric., 768 F.2d 1030, 1039 (9th Cir.1985). To determine whether a state development plan constitutes a major federal action under NEPA, we look to “the nature of the federal funds used and the extent of federal involvement.” Sierra Club v. Penfold, 857 F.2d 1307, 1314 (9th Cir.1988). “While significant federal funding can turn what would otherwise be a state or local project into a major federal action, consideration must be given to a great disparity in the expenditures forecast for the [local] and federal portions of the entire program.” Ka Makani ’O Kohala Ohana Inc. v. Dep’t of Water Supply, 295 F.3d 955, 960 (9th Cir.2002) (internal quotation marks and citations omitted). Federal decisionmakers must also retain “power, authority, or control over” the state project. Id. at 960-61 (“[This authority] must be more than the power to give nonbinding advice to the nonfederal actor ... the federal agency must possess actual power to control the nonfederal activity”) (quoting Village of Los Ranchos de Albuquerque v. Barnhart, 906 F.2d 1477, 1482 (10th Cir.1990) (internal quotation marks and citations omitted)). The creation of MWFPU was not a federal action. No federal funds were used in MWFPU’s creation, and it is uncontested that the Wastewater Advisory Group, solely comprised of representatives from city and county departments, led efforts to develop the MWFPU. The creation of MWFPU was not a major federal action and does not establish subject matter jurisdiction in this case. Nor was the implementation of MWFPU a major federal action. We have found that federal funding amounting to just 10% of total estimated expenditures does not federalize a project for purposes of NEPA application. Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 329 (9th Cir.1975). Missoula officials estimated that the cost to complete all of the planned improvements detailed in the MWFPU would total over $88 million. To date, only $5 million in federal funds have been awarded by the EPA. That $5 million federal grant was used in the construction of the WTPU, a project that cost just under $15 million to complete. While Congress has also earmarked $500,000 for the RSP, the EPA has yet to grant those funds to Missoula. As the district court found, the total federal funds awarded to Missoula comprises just under 6% of the estimated implementation budget. The Coalition stresses that the 6% calculation misrepresents the financial involvement of the United States because federal funds will no doubt be awarded in the future for the purpose of implementing other projects under the MWFPU. However, we cannot base our evaluation of the federal nature of the MWFPU on speculation about the future federal funding of its constituent projects. If Missoula determines to seek federal funding, it must apply to the EPA for federal funding for each constituent project of the MWFPU, and we cannot predict Missoula’s action, or if funds are sought whether the EPA will fund these future projects, and, if so, to what degree. The small proportion of federal funding currently supporting the projects of the MWFPU does not federalize the implementation of the entire MWFPU. Moreover, a local plan does not become a major federal action subject to NEPA regulations merely upon its approval by a federal agency. See Friends of the Earth, 518 F.2d at 328-29. The development and improvement of sewage treatment by a municipality is intrinsically a local matter under the responsibility of local government. NEPA does not apply to an agency’s approval of a local government’s development program comprised of “distinct projects with separate functions and independent justifications,” even if some of the constituent projects are entirely funded by the federal government. See id. The United States must maintain deci-sionmaking authority over the local plan in order for it to become a major federal action. See Ka Makani, 295 F.3d at 960-61. The Coalition has neither demonstrated that the WTPU is inextricably linked to the other projects proposed by MWFPU nor shown that the United States maintains control over the implementation of MWFPU. Absent a showing of federal control of MWFPU, the EPA’s approval of MWFPU and subsequent grant of $5 million to support the WTPU does not elevate the entire MWFPU to the status of a major federal action. The district court correctly evaluated the Coalition’s complaint as containing two distinct NEPA claims. y Viewing the Coalition’s complaint as two distinct NEPA claims — one involving the WTPU and the other involving the RSP— we consider whether the district court properly dismissed both claims for lack of standing and lack of subject matter jurisdiction. A With regard to the WTPU claim, the district court concluded that the Coalition lacked standing to bring suit in federal court. We affirm the district court’s dismissal for lack of standing because any injury suffered by the Coalition due to the EPA’s failure to follow NEPA procedures could not be remedied when the complaint was filed. To establish standing to sue in federal court, a plaintiff must show that (1) the plaintiff has suffered an injury in fact, (2) the injury is traceable to the defendant, and (3) a favorable decision will redress the injury. Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Fatal to the Coalition’s WTPU claim is the third prong of the standing analysis: the Coalition cannot show that there is a genuine likelihood that its injury will be redressed if it succeeds on the merits. See id. The injuries allegedly-suffered by the Coalition include health problems and a decrease in the enjoyment and value of their property. Missoula completed construction of the WTPU in October of 2004 and fully expended the $5 million EPA grant in the process. The Coalition’s injuries cannot be redressed now that the WTPU is complete and the federal funds are expended. See Gonzales v. Gorsuch, 688 F.2d 1263, 1268 (9th Cir.1982) (concluding that once the project was completed and the federal funds expended, the court could not bring about the water pollution planning sought by the plaintiff); see also Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1379 (9th Cir.1978) (“Where the activities sought to be enjoined have already occurred, and the appellate courts cannot undo what has already been done, the action is moot.”). Requiring the EPA to produce an EA and EIS with regard to the WTPU would not redress any personal health or property injuries suffered by the Coalition members as a result of the construction. We hold that the Coalition lacks standing to bring its WTPU claim in federal court. B With regard to the RSP claim, the district court concluded that it lacked subject matter jurisdiction to adjudicate the Coalition’s claim. The United States must waive its sovereign immunity before a federal court may adjudicate a claim brought against a federal agency. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). Here, because NEPA does not subject the EPA to suit, see 42 U.S.C. § 4321 et seq., the Coalition has to establish waiver of immunity under the Administrative Procedure Act (“APA”). See 5 U.S.C. §§ 702, 704. The APA permits a citizen suit against an agency when an individual has suffered “a legal wrong because of agency action” or has been “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. When a claim is brought pursuant to the APA, the agency action must be “final agency action for which there is no other adequate remedy in court.” 5 U.S.C. § 704. An agency action is “final” when (1) the agency reaches the “consummation” of its deci-sionmaking process and (2) the action determines the “rights and obligations” of the parties or is one from which “legal consequences will flow.” Bennett, 520 U.S. at 177-78, 117 S.Ct. 1154. The district court determined that Congress’s appropriation of $500,000 for the completion of the RSP did not constitute final agency action. The district court reasoned that, regardless of the congressional appropriation and earmark, the Coalition’s claim would not be ripe until after the EPA awards the money to Missoula. In its opening brief, the Coalition appeared to challenge the district court’s dismissal for lack of subject matter jurisdiction by arguing that where Congress has earmarked federal funds for a particular project via an appropriations act, the funds should be considered dispersed and qualify as a final agency action under the APA. This contention is not supported by administrative law. First, Congress is excluded from the APA’s definition of an agency. 5 U.S.C. § 701(b)(1)(a) (“ ‘agency’ means each authority of the Government of the United States ..., but does not include the Con-gress_”). Therefore, Congress’s appropriation of $500,000 to the EPA earmarked for the RSP does not constitute a final agency action under the APA. Second, the congressional appropriation to the EPA of funds for a particular project does not constitute a final agency action by the EPA until the EPA has reviewed a grant application and decided to disburse the funds. See Karst Envtl. Educ. & Prot., Inc. v. U.S. Envtl. Prot. Agency, 403 F.Supp.2d 74, 81 (D.D.C.2005) (concluding that there was no final agency action where HUD had yet to consider and approve a grant application for disbursal of appropriated funds because “the federal money is but an. expectancy that has not yet materialized”) (citation and internal quotation marks omitted), aff'd, 475 F.3d 1291 (D.C.Cir.2007); Citizens Alert Regarding the Env’t v. U.S. Envtl. Prot. Agency, 259 F.Supp.2d 9, 20 (D.D.C.2003) (“The possibility that federal funding will be provided in the future is not sufficient to federalize a state project, even when such funding is likely.”) (quoting United States v. S. Fla. Water Mgmt. Dist., 28 F.3d 1563, 1573 (11th Cir.1994)), aff'd, 102 Fed.Appx. 167 (D.C.Cir.2004). Even where, as here, Congress has specified the specific project to which funds should be allocated, the EPA does not take a final agency action until it completes its review of the grant application and decides to disburse the appropriated funds. Before disbursal of the funds, the EPA could decide to issue an EA and a FONSI or an EIS. Absent final agency action, there was no jurisdiction in the district court to review the NEPA claim. C The Coalition further argues that the EPA’s issuance of an EA and FONSI with regard to the MWFPU are final agency actions for purposes of judicial review. We have held that an agency’s decision not to issue an EIS concludes the agency’s procedural inquiry into the environmental impact of a proposed project and therefore constitutes a final agency action, regardless of whether the agency has decided to fund the project. Friedman Bros. Inv. Co. v. Lewis, 676 F.2d 1317, 1319 (9th Cir.1982). Had the Coalition established standing, this argument would provide the district court with jurisdiction to hear the WTPU- claim, but it does not establish subject matter jurisdiction with regard to the RSP claim. The EPA has specifically declined to accept the EA of the MWFPU for the RSP, and there is no indication in the record that the EPA has subsequently adopted an EA for the RSP. As a result, the EPA has not concluded its procedural inquiry into the environmental impact of the RSP, and the district court properly held' that it lacked subject matter jurisdiction to hear the Coalition’s RSP claim. D Finally, the Coalition argues that dismissal of its RSP claim for lack of subject matter jurisdiction combined with dismissal of its WTPU claim for lack of standing means that in a case involving a major federal action, claimants will be barred from bringing suit against the EPA for violations of the procedural requirements of NEPA: On the one hand, if the claimants sue before the agency has made a final decision to disburse the funds, the suit will be dismissed for lack of subject matter jurisdiction. On the other hand, if filed after the disbursement, the suit will be dismissed because no relief provided by the court could redress the procedural violation. While the window for such claims may be narrow, a claimant can file suit and simultaneously seek a preliminary injunction as soon as the federal agency makes a final decision to award the grant but before the funds are entirely disbursed by the federal agency. Here, for example, the EPA notified Missoula of its decision to .award the $5 million grant on September 21, 1998 and informed Missoula of its final approval of the MWFPU for purposes of the grant on July 31, 2000, but did not begin to disburse the funds until November 29, 2000 and did not conclude disbursement until September 8, 2003, providing ample time for a claimant to file suit under NEPA. The APA applies to waive sovereign immunity only after final agency action. 5 U.S.C. § 704. Before final agency action has occurred, an action against the EPA for procedural violations of NEPA is premature and a federal court lacks subject matter jurisdiction to hear the claim. VI The district court also dismissed the Coalition’s action against Mis-soula for lack of subject matter jurisdiction and lack of standing, and the Coalition appeals that dismissal. “Usually, the federal government is the only proper defendant in an action to compel compliance with NEPA.” Laub, 342 F.3d at 1091-92 (citation and internal quotation marks omitted). Where state and federal projects are not interrelated and do not constitute a single federal action under NEPA, nonfederal entities cannot be defendants in a NEPA suit. See id. Because we have held that the MWFPU is not a major federal action and the RSP is not a final agency action, Missoula is not a proper defendant and the district court did not err in dismissing the claims against Missoula for lack of subject matter jurisdiction. Likewise, the district court properly dismissed the claims against Missoula for lack of standing. NEPA requires federal agencies to prepare an EIS when there are major federal actions significantly affecting the quality of the human environment. 42 U.S.C. § 4321 et seq. A local government can prepare an EA, but the federal agency must adopt the EA in order for it to qualify as an agency’s environmental review for purposes of NEPA. Id. Only the federal government, not the local government, can adopt the EA and EIS that the Coalition seeks as its relief. Therefore, no order issuing from the district court in a claim against Missoula could grant the relief requested by the Coalition: Missoula cannot issue an EIS on behalf of the EPA. AFFIRMED. . Once challenged, the party asserting subject matter jurisdiction has the burden of proving its existence. See Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1558 (9th Cir.1987); see also 2 James Wm. Moore et al., Moore’s Federal Practice § 12.30[5] (3d ed.2007). Where a plaintiff has "made a sufficient showing that a fact-intensive analysis is required before a conclusion can be made as to whether the state and federal activities are so intertwined that the project qualifies as a major federal action,” this court has remanded the issue to the district court for further discovery. Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1092 (9th Cir.2003). Here, however, the plaintiffs have failed to meet that burden. Unlike the plaintiffs in Laub, who pointed to, among other things, language in federal-state agreements that the respective agencies would develop a single plan for implementing the project, the Coalition has failed to provide any support for its contention of federal control of MWFPU. . Missoula asked the district court to dismiss the Coalition’s claim for (1) lack of jurisdiction, (2) failure to state a claim, (3) failure to join all necessary parties, (4) failure to exhaust all administrative remedies, (5) laches, and (6) lack of standing. The district court, however, dismissed the Coalition's claim only for lack of jurisdiction and lack of standing. Missoula did not appeal the district court’s rejection of the alternate grounds for dismissal. We do not address the alternate grounds here.

Florence v. Crescent Resources, LLC

COX, Circuit Judge: We address in these appeals the question of fraudulent joinder of a resident defendant in the context of removal jurisdiction. Applying the rule that any ambiguity or doubt about whether state law might impose liability on a resident defendant favors remand, we conclude that the district court should have remanded these cases to state court. I. PROCEDURAL HISTORY Plaintiffs Annette Florence, William Burke, Robert Burns, and Lethesa Reli-ford as personal representative of the estate of Ceola Reliford filed individual lawsuits against Crescent Resources, LLC (“Crescent”) and Rinehart Development & Investment Group, LLC (“Rinehart”) in Florida state court. The complaint in each case alleged that: (1) land owned by Crescent and Rinehart at the time the lawsuits were filed had been used by its previous owners as a manufacturing facility and waste water treatment plant; (2) each Plaintiff had sustained personal injury or death caused by exposure to hazardous substances that were stored on the land prior to Crescent’s and Rinehart’s ownership of it; and (3) Crescent and Rinehart were liable pursuant to § 376.313 Florida Statutes, a statute that creates a strict liability cause of action against owners of real property in Florida for damages caused by surface or ground water contaminants on the property. Crescent removed the cases to federal court, alleging that jurisdiction existed over each case, pursuant to 28 U.S.C. § 1441, as the amount in controversy exceeded $75,000; Crescent was diverse from each Plaintiff; and Rinehart, a citizen of Florida, had been fraudulently joined in the lawsuits. In its notices of removal, Crescent stated (and Rinehart joined the argument) that Plaintiffs could not state causes of action under the Florida statute against Rinehart because, as a matter of law, Plaintiffs could prove no causal connection between Plaintiffs’ exposure to hazardous substances, pollutants, and chemicals and Rinehart’s use of the land, which it acquired years later. Each Plaintiff moved to remand to state court, arguing that § 376.313, Fla. Stat. imposes strict liability on the owners of contaminated land and does not require Plaintiffs to prove any causal connection between their exposure to hazardous substances and the current owners’ use of the land. At the very least, Plaintiffs argued, there was a possibility that their complaints stated causes of action under Florida law. Therefore, Plaintiffs concluded, Rinehart had not been fraudulently joined, its Florida citizenship destroyed diversity jurisdiction, and remand was proper. Crescent opposed Plaintiffs’ motions to remand. While the motions to remand were pending, Crescent filed motions to dismiss Plaintiffs’ complaints with prejudice or, in the alternative, for summary-judgment. In these filings, Crescent again argued that the Florida statute does not impose liability on property owners who acquire the property after a plaintiffs exposure to pollution on the property. It also argued that the Florida statute: (1) does not create a cause of action for personal injury, and (2) provides an affirmative defense — the Third Party Defense— that applied to bar Plaintiffs’ claims against both Rinehart and Crescent. According to Crescent, the Third Party Defense, found at § 376.308(2)(d), Fla. Stat., required dismissal of Rinehart (as a fraudulently joined non-diverse Defendant) and judgment in favor of Crescent. The district court denied Plaintiffs’ motions to remand, dismissed Rinehart, and entered judgment for Crescent in each of the cases. In its orders, the district court adopted by reference the reasoning it expressed in a related case that alleged the same cause of action against Defendants, Brottem v. Crescent Resources, LLC, No. 6:06-cv-306-Orl-31KRS, 2006 WL 1529327 (M.D.Fla. May 24, 2006). In Brottem, the district court said that there was a “distinct possibility that a Florida court could find that a private cause of action exists under Florida law for the personal injury damages suffered by the Plaintiffs.” Id. at *4. And, the court rejected Defendants’ argument that Plaintiffs must prove that the pollution that caused their injuries was created by Defendants. Id. However, in Brottem and the cases now on appeal, the district court found that the statutory Third Party Defense barred the claims against Defendants. Plaintiffs appeal the denial of their motions to remand and the judgments in favor of Crescent. We consolidated the four cases on appeal. II. ISSUES ON APPEAL & CONTENTIONS OF THE PARTIES Plaintiffs argue that their complaints state viable claims under the Florida statute against both Rinehart and Crescent, claims that are not barred by the statutory Third Party Defense. At the very least, they argue, the complaints present color-able claims under Florida law. Thus, they argue that their cases should have been remanded to state court because Rinehart (the non-diverse Defendant) was not fraudulently joined, there was not complete diversity between the parties, and the district court lacked subject matter jurisdiction. For the same reasons, Plaintiffs also argue that the district court erred in granting summary judgment to Crescent. Rinehart and Crescent argue that the district court properly concluded that Plaintiffs could not maintain a cause of action against them pursuant to § 376.313, Fla. Stat. They argue that the Florida statute does not impose liability on owners of real property for personal injuries caused by a plaintiffs exposure to hazardous waste or toxic chemicals prior to the defendant’s ownership of the property. And, they argue that the statutory Third Party Defense bars the Plaintiffs’ claims against them. Therefore, they conclude, the district court did not err in dismissing Rinehart, denying the motions to remand, and granting summary judgment for Crescent. Concluding that the court erred in denying Plaintiffs’ motions to remand, we address only the jurisdictional issues in this case. III. STANDARD OF REVIEW We review denial of a plaintiffs motion to remand de novo. See Henderson v. Washington Nat Ins. Co., 454 F.3d 1278, 1281 (11th Cir.2006) (citing Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1373 (11th Cir.1998)). IV. DISCUSSION “When a defendant removes a case to federal court on diversity grounds, a court must remand the matter back to state court if any of the properly joined parties in interest are citizens of the state in which the suit was filed. Such a remand is the necessary corollary of a federal district court’s diversity jurisdiction, which requires complete diversity of citizenship.” Henderson, 454 F.3d at 1281 (citing Lincoln Prop. Co. v. Roche, 546 U.S. 81, 126 S.Ct. 606, 613, 163 L.Ed.2d 415 (2005); 28 U.S.C. § 1441(b)). However, if a defendant shows that “there is no possibility the plaintiff can establish a cause of action against the resident defendant,” then the plaintiff is said to have fraudulently joined the non-diverse defendant. Id. (quoting Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir.1997)). In that situation, the federal court must dismiss the non-diverse defendant and deny any motion to remand the matter back to state court. Id. Crescent removed these cases to federal court based solely on its allegation that diversity jurisdiction exists in the federal court. Thus, in the face of Plaintiffs’ motions to remand, Crescent had to demonstrate that Rinehart (a citizen of Florida) was fraudulently joined in the cases. As we stated in Henderson, “the district court was correct to deny the motion to remand only if there was no possibility that [the Plaintiffs] could have maintained a cause of action against [the resident defendant] in ... state court.” 454 F.3d at 1281-82. We turn now to consideration of the cause of action asserted in Plaintiffs’ complaints. Section 376.313, Fla. Stat. states, in pertinent part: (3) ... [N]othing contained in [sections] 376.30-376.319 prohibits any person from bringing a cause of action in a court of competent jurisdiction for all damages resulting from a discharge or other condition of pollution covered by [sections] 376.30-376.319. Nothing in this chapter shall prohibit or diminish a party’s right to contribution from other parties jointly or severally liable for a prohibited discharge of pollutants or hazardous substances or other pollution conditions. Except as otherwise provided in subsection (4) or subsection (5), in any such suit, it is not necessary for such person to plead or prove negligence in any form or manner. Such person need only plead and prove the fact of the prohibited discharge or other pollutive condition and that it has occurred. The only defenses to such cause of action shall be those specified in [section] 376.308. The plain language of the statute does not indicate whether a plaintiff can maintain a personal injury cause of action against a defendant that acquires polluted property after the plaintiffs exposure. To support their contention that they can maintain such an action, Plaintiffs cite Aramark Uniform and Career Apparel, Ine. v. Easton, 894 So.2d 20 (Fla.2004), which holds that the statute creates a strict liability cause of action. In Aramark, the Florida Supreme Court stated that section 376.313 “creatfes] a damages remedy for the non-negligent discharge of pollution without proof that the defendant caused it.” Id. at 24 (emphasis added). However, Aramark does not state that a personal injury plaintiff can maintain the statutory cause of action against a defendant who not only did not cause the pollution but also did not own the contaminated property at the time the plaintiff was exposed to the pollution. On the other hand, Ara-mark does not eliminate the possibility that such a claim is viable. And, Defendants cite no other Florida statute or case that does so. As the district court said, there is a “distinct possibility that a Florida court could find that a private cause of action exists under Florida law for the personal injury damages suffered by the Plaintiffs.” Brottem, 2006 WL 1529327, at *4. But, it is also possible that a Florida court could find otherwise, holding that, in order to be held liable, a defendant must have owned the property at the time of plaintiffs exposure to the pollution. Florida law is unclear on this point. Defendants argue, and the district court found, that Plaintiffs cannot maintain a cause of action against them because the statutory Third Party Defense acts as a total bar to Plaintiffs’ claims against both Rinehart and Crescent. That affirmative defense allows a defendant to escape liability by proving that: (1) the pollution was solely the result of an act or omission of a third party unrelated to the defendant, (2) the defendant “exercised due care with respect to the pollutant concerned, taking into consideration the characteristics of such pollutant, in light of all relevant facts and circumstances,” and (3) the defendant “took precautions against any foreseeable acts or omissions of any such third party and against the consequences that could foreseeably result from such acts or omissions.” § 376.308(2)(d), Fla. Stat. The district court acknowledged that owners like Rinehart, who later acquire contaminated property, cannot prove the last two elements of the Third Party Defense as enumerated in the statute. Brottem, 2006 WL 1529327, at *6 n. 14. In finding that the defense should nonetheless apply to bar actions against those defendants, the district court posited an answer to the question that we find remains unanswered in Florida law: whether a cause of action for personal injury caused by environmental contamination can be maintained against property owners who did not own the property at the time of the plaintiffs exposure to the contamination. As we have previously cautioned, on a motion for remand, the federal court’s analysis “must be limited to determining whether Plaintiffs have even an arguable claim. So, any ambiguity or doubt about the substantive state law favors remand to state court.” Crowe v. Coleman, 113 F.3d 1536, 1539 (11th Cir.1997). We hold that, if there is any possibility that the state law might impose liability on a resident defendant under the circumstances alleged in the complaint, the federal court cannot find that joinder of the resident defendant was fraudulent, and remand is necessary. Henderson, 454 F.3d at 1284; Crowe, 113 F.3d at 1540; see also Parks v. The New York Times Co., 308 F.2d 474, 477 (5th Cir.1962) (“[Djetermination of fraudulent joinder is to be based on whether there was a real intention on colorable grounds to procure a joint judgment. Doubt as to whether under the state law a case of joint liability is stated ... will not render the joinder fraudulent.”). Because we conclude that Florida law is unclear as to whether Rinehart and Crescent could, as a matter of law, be held liable for personal injury damages suffered by Plaintiffs as a result of their exposure to environmental contaminants prior to the Defendants’ ownership of the contaminated land, the district court erred in concluding that Rinehart was fraudulently joined. Because Rinehart is a citizen of Florida, complete diversity does not exist, and the district court lacked subject matter jurisdiction to adjudicate the cases. The motions to remand should have been granted. V. CONCLUSION For the foregoing reasons, the dismissals and judgments are vacated, and the cases are remanded to the district court with instructions to remand them to the state court for further proceedings. VACATED AND REMANDED. . In Brottem, the court stated that because Rinehart and Crescent acquired ownership of the land in question after the pollution occurred, they could not prove two elements of the statutory defense, namely that they: (1) exercised due care with respect to the pollutant in question; and (2) took precautions against foreseeable acts or omissions of the third party responsible for the discharge. See § 376.308(2)(d), Fla. Stat.; Brottem, 2006 WL 1529327, at *6 n. 14. However, the district court decided that the consequence of subjecting innocent subsequent purchasers to liability could not have been intended by the Florida legislature. Brottem, 2006 WL 1529327, at *6. The district court concluded that it should interpret the Third Party Defense such that it nevertheless bars the actions against Rinehart. Id. Because there was no possibility that the Plaintiffs could state a valid claim against Rinehart, the court said, Rinehart was fraudulently joined and must be dismissed. Id. . A defendant may also demonstrate fraudulent joinder by showing, by clear and convincing evidence, that “the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court.” Henderson, 454 F.3d at 1281. Crescent has not argued that Plaintiffs fraudulently pled jurisdictional facts; rather, it has pursued only the argument that there is no possibility Plaintiffs could establish a cause of action against Rinehart under the Florida law. . We have acknowledged that, under some circumstances, application of an affirmative defense can support a finding of fraudulent joinder. See Henderson, 454 F.3d at 1283-84. . In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981. . The district court may have reached the correct conclusion in holding that Florida law does not impose liability on a defendant that did not own the contaminated property at the time of a plaintiff's exposure to the contamination. We express no opinion as to whether that conclusion is correct; we simply observe that it is not mandated by existing Florida law.

California v. United States Department of the Navy

CHOY, Circuit Judge: The State of California (“California”) brought this action against the United States Department of the Navy (“Navy”) for alleged violations of a state water pollution discharge permit. The complaint alleges that the Navy violated the terms and conditions of its permit from October 1983 through July 1984. by discharging waste that was not properly treated into the San Francisco Bay. The complaint sought recovery of civil penalties under §§ 505(a)(1) and 309(d) of the Clean Water Act (“CWA”), 33 U.S.C. §§ 1365(a)(1), 1319(d), and Cal.Water Code §§ 13385 and 13386. The Navy filed a motion to dismiss under both Fed.R.Civ.P. 12(b)(1) and 12(b)(6), alleging that the district court lacked subject matter jurisdiction and that California had failed to state an actionable claim. On April 2, 1986, the district court granted the Navy’s motion. California v. Department of the Navy, 631 F.Supp. 584 (N.D.Cal.1986). The court held that a state is not a “citizen” within the meaning of § 505(a) of the CWA, and that § 309(d), in conjunction with § 313, 33 U.S.C. § 1323, does not create an independent jurisdictional ground for a state to seek civil penalties against a federal entity. 631 F.Supp. at 590-92. California timely appeals. We review de novo the district court’s conclusion that it lacked subject matter jurisdiction. Carpenters Southern California Administrative Corp. v. Majestic Housing, 743 F.2d 1341, 1343 (9th Cir.1984). We affirm. STATUTORY BACKGROUND The opinion below and prior decisions of this court have discussed the purpose and statutory background of the CWA. It is sufficient for our purposes to note that the CWA authorizes a permit system — the National Pollutant Discharge Elimination System (“NPDES”) — for the enforcement of pollution discharge limitations. Although the Administrator of the Environmental Protection Agency (“Administrator”) is authorized to issue NPDES permits directly, each state may also establish and administer its own permit program. 33 U.S.C. § 1342(a), (b). State programs require the Administrator’s approval, but the Administrator must approve any state system unless he or she determines that the state does not have “adequate authority” to enforce the Act. 33 U.S.C. § 1342(b). The California program, which the Administrator authorized on May 14, 1983, is contained in Chapter 5.5 of the California Water Code. Cal.Water Code §§ 13370-13389. Once a state permit program has been approved and implemented, the Act provides for an elaborate enforcement scheme involving the Administrator, the states, and citizens. The extent to which Congress intended the various enforcement mechanisms to interact is the issue presently before us. DISCUSSION 1. Jurisdiction Under Section 309(d) Section 313 of the CWA requires all federal facilities to comply with state NPDES permit requirements. 33 U.S.C. § 1323(a). Section 309(d) declares that any person who violates a state-issued permit “shall be subject to a civil penalty not to exceed $10,000 per day of such violation.” 33 U.S.C. § 1319(d). California thus argues that § 309(d) of the CWA, in conjunction with § 313, provides an independent jurisdictional ground for a state to seek civil penalties against federal dischargers. While § 309(d) does not explicitly indicate who is authorized to seek civil penalties, we agree with the district court’s conclusion that Congress intended to authorize only the Administrator to seek such penalties. Both the structure of § 309 and its legislative history indicate that the section is intended to outline the Administrator’s enforcement powers under the CWA. Section 309(a), (b), and (f) specifically authorize the Administrator to bring various compliance actions, and § 309(e) outlines a procedural requirement in terms which suggest that actions under § 309 will be brought by the Administrator. It is also significant that in the authorization of citizen suits under § 505(a), Congress felt it necessary to expressly provide for § 309(d) civil penalties. This further suggests that Congress intended to otherwise limit access to § 309(d). The legislative history of § 309 also supports this conclusion. The House Report states that “[t]he provisions of section 309 are supplemental to those of the State and are available to the Administrator in those cases where ... State ... enforcement agencies will not or cannot ... enforce the requirements of this Act.” H.R.Rep. No. 911, 92d Cong., 2d Sess. 115 (1972). The Senate Report refers to § 309 as the “federal enforcement” provision and states that it is intended to create federal enforcement powers concurrent with those of the states. S.Rep. No. 414, 92 Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Admin.News 3668, 3729-30. The report similarly outlines the Senate Committee’s intent that the authority granted in the Administrator by § 309 should be used judiciously. Id. See also 118 Cong. Rec. 33693 (1972) (statement by Senator Muskie outlining the Administrator’s responsibilities under § 309, the “enforcement section” of the Act). The legislative history to the 1986 amendments to the CWA again refers to the remedies available to the Administrator under § 309. H.R.Rep. No. 1004, 99th Cong., 2d Sess. 132 (1986). We similarly reject California’s suggestion that we find an implied cause of action under § 309(d). In Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 13, 101 S.Ct. 2615, 2623, 69 L.Ed.2d 435 (1981), the Court cautioned against unnecessary judicial activism in enforcement of the CWA, noting that the CWA contains “unusually elaborate enforcement provisions, conferring authority to sue ... both on government officials and private citizens.” In light of those provisions, “it cannot be assumed that Congress intended to authorize by implication additional judicial remedies.” Id. at 14, 101 S.Ct. at 2623. Finally, the Court in Gwaltney specifically differentiated between citizen suits under § 505(a) and the Administrator’s authority to seek penalties for past violations under § 309(d). The Court stated that a comparison of the two sections supported its conclusion that “citizens, unlike the Administrator, may seek civil penalties only in a suit brought to enjoin or otherwise abate an ongoing violation.” Gwaltney, 108 S.Ct. at 382. Further, the Court recognized that the Administrator’s ability to secure compliance from a violator through a bargain in which the Administrator agreed not to seek § 309(d) penalties would be limited if citizens could later use § 505(a) to pursue those foregone penalties. Id. at 383. Permitting the state to seek penalties for past violations through § 309(d) would similarly frustrate the Administrator’s ability to enforce the CWA in the public’s best interest. In short, we agree that Congress intended § 309 to be utilized solely by the Administrator, except to the extent that § 505(a) expressly authorizes citizens to step into the shoes of the Administrator through § 309(d) to obtain civil penalties in citizen suits. We thus affirm the district court’s dismissal of California’s § 309(d) claim. II. Jurisdiction Under § 402(b)(7) California also asserts federal jurisdiction under § 402(b)(7) of the CWA. This provision states that in order to obtain approval of an NPDES program, a state must have adequate authority “[t]o abate violations of the permit program, including civil and criminal penalties.” 33 U.S.C. § 1342(b)(7). California has included civil penalty provisions in its NPDES program. See CaLWater Code §§ 13385-86. California asserts that because these provisions were mandated by § 402(b)(7) and approved by the Administrator, they fall within § 313, which subjects federal dischargers to civil penalties “arising under” federal law. 33 U.S.C. § 1323(a). This argument is neither supported by the structure of the CWA nor its legislative history. Section 402(b) itself requires a state to submit to the Administrator a description of the program it intends to administer under state law. 33 U.S.C. § 1342(b). Further, Cal.Water Code § 13386, which outlines a portion of the requisite enforcement provisions, authorizes the State Attorney General to seek civil penalties in state superior court. The legislative history clearly states that the state permit programs are “not a delegation of Federal authority,” but instead are state programs which “function[] in lieu of the Federal program.” H.R.Rep. No. 830, 95th Cong., 1st Sess. 104 (1977), U.S.Code Cong. & Admin.News 1977, 4327, 4479. Finally, we decline the invitation to find a Congressional waiver of sovereign immunity without finding the requisite explicit Congressional intent. See United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980). California’s position would essentially nullify § 313(a)’s express limitation of civil penalties against federal agencies to those arising under federal law. Congress clearly did not intend such a result. CONCLUSION Congress specifically contemplated that states would seek both civil and criminal penalties for the violation of state NPDES permits in state court under state law. See 33 U.S.C. § 1342(b)(7). Thus, where Congress intended to grant states an active role in the enforcement process, “it knew how to do so and did so expressly.” Touche Ross & Co. v. Redington, 442 U.S. 560, 572, 99 S.Ct. 2479, 2487, 61 L.Ed.2d 82 (1979). In light of the extent to which Congress has delineated the respective roles of the Administrator, the states, and private individuals under the CWA, we are unwilling to broaden the scope of the overall enforcement scheme. See Massachusetts Mutual Life Insurance Co. v. Russell, 473 U.S. 134, 147, 105 S.Ct. 3085, 3093, 87 L.Ed.2d 96 (1985). “ ‘[W]here a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.’ ” Sea Clammers 453 U.S. at 14-15, 101 S.Ct. at 2623 (quoting Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19, 100 S.Ct. 242, 247, 62 L.Ed.2d 146 (1979)). The district court’s conclusion that it lacked subject matter jurisdiction to hear California’s claims is AFFIRMED. . California’s claim under the citizen suit provision of § 505 is no longer before us. The Supreme Court recently held that "§ 505 does not permit citizen suits for wholly past violations.” Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., — U.S.-, 108 S.Ct. 376, 384-85, 98 L.Ed.2d 306 (1987). On January 4, 1988, we granted California's motion to withdraw the appeal of its § 505 claim in light of Gwaltney. We thus express no opinion as to whether the district court correctly held that a state is not a "citizen” within the meaning of § 505(a). The district court did not specifically address the cause of action brought under Cal.Water Code §§ 13385-86, for which California asserts jurisdiction under § 402(b)(7), 33 U.S.C. § 1342(b)(7). Indeed, although raised in its complaint, it is not clear that California pursued this claim before the district court. However, a federal appellate court may decide an issue not adjudicated below where the proper resolution of that issue is clear. Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). This is such an issue.. . See Shell Oil Co. v. Train, 585 F.2d 408, 409-10 (9th Cir.1978); California, 631 F.Supp. at 586. . Having determined that the § 309 does not provide an independent jurisdictional ground for the State’s suit, we need not decide whether the language of §§ 309(d) and 313 contains the requisite explicit waiver of sovereign immunity to allow an action against the Navy.

Southview Associates, Ltd. v. Bongartz

OAKES, Chief Judge: This appeal requires us to decide whether the denial, pursuant tó Vermont’s land use statute, Act 250, 10 V.S.A. § 6001 et seq. (1984 & Supp.1991) (“Act 250”), of a permit in respect to a vacation home development in the Green Mountains, gives rise to valid claims for relief under the Fifth and Fourteenth Amendments. Appellants Southview Associates, Ltd. and Southview at Stratton Partners (“Southview”) sued the Appellees, the individual members of the Vermont Environmental Board (“the Board”), under 42 U.S.C. § 1983 (1988). Southview claimed that the Board’s denial of its application for an Act 250 development permit (1) deprived it of due process of law, (2) denied it equal protection of law, and (3) constituted a taking without just compensation. The United States District Court for the District of Vermont, Franklin S. Billings, Jr., Judge, granted the Board’s motion to dismiss Southview’s complaint, 782 F.Supp. 279, apparently pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), and Southview now appeals. For the reasons set forth below, we affirm. I. A. Act 250 Act 250 has been a major feature of the Vermont legal landscape for over twenty years. Its enactment represented the culmination of an effort to create a process that would subject subdivisions and other large developments in Vermont to administrative review so as to ensure economic growth without environmental catastrophe. See Governor’s Commission on Environmental Control, Reports to Governor 2 (January 1970; May 1970). A brief discussion of the backdrop to the statute’s enactment underscores its purpose. Beginning in the mid-1960s, Vermont experienced a massive increase in second-home construction and other recreational development, particularly in the southern portion of the state and around ski areas. Robert K. Reis, Vermont’s Act 250: Reflections on the First Decade and Recommendations for the Second 9 (1980); David G. Heeter, Almost Getting it Together in Vermont, in Environmental and Land Controls Legislation 323, 326 (David R. Mandelker ed. 1976); Fred Bos-selman & David Callies, The Quiet Revolution in Land Use Control 54 (1971) (prepared for the Executive Office of the President, Council on Environmental Quality); Erickson, The Vermont Environmental Protection Act of1970, in Environmental Protection 678, 679 (Louis L. Jaffe & Laurence H. Tribe, eds. 1971). These developments shifted economic activity away from agriculture and forestry — the traditional mainstays of the region. Erickson, supra, at 679. The Town of Dover, located in Southern Vermont, provides an example. As one writer explained, in Dover, in 1969, developers were completing, building or planning 19 vacation home subdivisions. According to a regional planner, if all the planned lots had been improved and occupied, the town’s population would have increased from 370 to 16,000 within a few years. Id. This spate of development was fueled by several factors, including the construction of interstate highways, the increased popularity of skiing and other outdoor activities, and what might be termed America’s fascination with “the country life.” See Reis, supra, at 9. Although the development yielded considerable tax revenue and increased property values, at times it threatened to destroy the very base of its existence: Vermont’s relatively unspoiled environment. Poorly planned vacation home subdivisions in mountainous areas — typified by steep.slopes and thin soil cover— caused soil erosion, water pollution from sewage systems, and a decline in the aesthetic quality of the land. Erickson, supra, at 680; Bosselman & Callies, supra, at 54-55; Heeter, supra, at 327. Public concern over the side-effects of this new and rapid growth reached the high water mark when, in the summer of 1968, the International Paper Company proposed to construct a huge recreational and vacation home development on 20,000 acres of wilderness in the towns of Stratton and Winhall. Governor’s Commission on Environmental Control, supra, at 3; Bosselman & Callies, supra, at 54; Heeter, supra, at 328. In May of 1969, then Governor Dean C. Davis responded by creating the Governor’s Commission on Environmental Control. Governor Davis charged the Commission with determining how economic growth could be attained without environmental destruction. Heeter, supra, at 329 (quoting opening remarks by Governor De-ane C. Davis, Proceedings of the Governor’s Conference on Natural Resources 1 (May 14, 1969)). The Commission’s recommendations included the enactment of a land use law that would require large developments, including subdivisions, to undergo administrative review prior to construction. Governor’s Commission on Environmental Control, supra, at 3-4. This proposal formed the basis of Act 250, enacted by the Legislature in 1970. Not all development projects are subject to Act 250 review. Essentially, an Act 250 permit is required if a person wishes to construct (1) improvements on a parcel or parcels involving more than ten acres located within a radius of five miles; (2) housing projects with 10 or more units located on land owned or controlled by that person within a radius of 5 miles; (3) a subdivision partitioned for resale into ten or more lots within a radius of 5 miles; and (4) improvements above the elevation of 2500 feet. No permit is necessary for construction required for farming, logging or forestry purposes below the elevation of 2500 feet. 10 V.S.A. §§ 6001, 6081(a) (1984 & Supp. 1991). A person whose project is subject to Act 250 jurisdiction must file an application with the regional three-person district commission. 10 V.S.A. §§ 6026, 6083 (1984 & Supp.1991). The district commission evaluates the project according to ten criteria relating to: (1) water and air pollution that will result; (2) availability of water to meet the project’s needs; (3) the project’s burden on the existing water supply; (4) soil erosion that will result; (5) the project’s effect on congestion and safety of transportation routes; (6) the burden the project will place on municipal and local government provision of educational and other services; (7) whether the project will have an undue adverse effect on “the scenic or natural beauty of the area, aesthetics, historic sites or rare and irreplaceable natural areas”; and (8) whether the project conforms with various state, regional and local development plans. 10 V.S.A. § 6086 (1984 & Supp.1991). If the district commission grants the application for a permit, it may attach conditions to it to assure compliance with the criteria for permit issuance. 10 V.S.A. § 6086(c) (1984). A permit applicant may appeal the decision of the district commission to the nine-member Vermont Environmental Board. 10 V.S.A. §§ 6021(a), 6089(a) (1984 & Supp. 1991). The Board reviews challenged findings de novo. 10 V.S.A. § 6089(a) (Supp. 1991). The permit applicant may, in turn, appeal the Board’s decision to the Supreme Court of Vermont, 10 V.S.A. § 6089(b) (Supp.1991), which will uphold the Board’s findings of fact “if supported by substantial evidence in the record as a whole.” 10 V.S.A. § 6089(c) (Supp.1991); see In re Southview Associates, 153 Vt. 171, 177, 569 A.2d 501, 504 (1989). The Vermont Legislature accompanied the enactment of Act 250 with a statement of legislative intent, which provides, in part: [T]he unplanned, uncoordinated and uncontrolled use of the lands and the environment of the state of Vermont has resulted in usages of the lands and the environment which may be destructive to the environment and which are not suitable to the demands and needs of the people of the state of Vermont. ... it is necessary to regulate and control the utilization and usages of lands and the environment to ensure that, hereafter, the only usages which will be permitted are not unduly detrimental to the environment, [and] will promote the general welfare through orderly growth and development....” Findings and declaration of intent, 1969, No. 250 (Adj.Sess.), § 1, in 10 V.S.A. annotations following § 6001 (1984). Subsequently, in 1973, the legislature further clarified the purpose of the act by adopting a “Capability and Development Plan” to guide the implementation of Act 250. 1973 Capability and development plan; statement of intent and findings, 1973 No. 85, § 7, in 10 V.S.A. annotations following § 6042 (1984). See Norman Williams & Tammara Van Ryn-Lincoln, The Aesthetic Criterion in Vermont’s Environmental Law, 3 Hofstra Prop.L.J. 89, 94-95 (1990). The plan states, in relevant part: (2) Utilization of Natural Resources [Conservation of the recreational opportunity afforded by the state’s hills, forests, streams and lakes ... are matters of public good. Uses which threaten or significantly inhibit these resources should be permitted only when the public interest is clearly benefited thereby. (6) General Policies for Economic Development In order to achieve a strong economy ... economic development should be pursued selectively so as to provide maximum economic development with minimal environmental impact. (10) Recreational Resources The use and development of land and waters should occur in such a way as not to significantly diminish the value and availability of outdoor recreational activities to the people of Vermont, including hunting.... (11) Special Areas Lands that include or are adjacent to sites or areas of historical, cultural, scientific, architectural, or archeological value ... should only be developed in a manner that will not significantly reduce that value of the site or area. Thus, the Legislature intended Act 250 to protect Vermont’s environmental resources with an eye towards maintaining, among other things, existing recreational uses of the land — such as hunting, for example— and preserving lands, when possible, that have special values to the public. In recognition of the importance of economic growth, however, the focus of the Act is not on barring development but on molding it to minimize its environmental impact. And in practice, one commentator has stated that “[t]he statute has ... been administered not as a ‘no-growth’ law, but as a law designed to improve the quality of growth.” Williams & Van Ryn-Lincoln, supra, at 94. We now turn to the dispute before us. B. Southview’s Act 250 Experience As a threshold matter, for the purpose of this appeal we accept as true the factual allegations set forth in Southview’s complaint. See LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir.1991). In March 1982, twelve years after the enactment of Act 250, Southview entered into an agreement with Cersosimo Lumber Co., Inc. (“Cersosimo”) to purchase a parcel of undeveloped land for $225,000. The parcel of land contains approximately 88 acres and is located in the towns of Stratton and Jamaica, Vermont, in an area that could be thought of as uplands, at an elevation of about 1600 to 1700 feet, near the world class ski area at Stratton Mountain. The transaction was consummated in June of 1982. Southview purchased the land with the intent to build a 78-lot residential subdivision, replete with approximately 1,500 feet of roads and a community sewage colleetion, treatment and disposal system. Prior to executing the purchase and sale contract, Southview alleges that it evaluated the property to determine whether any of the land’s characteristics would affect Southview’s ability to obtain the necessary development permits, including the land use permit required under Act 250. After entering into the $225,000 purchase and sale agreement, under which Southview apparently paid Cersosimo $10,-000 down, Southview hired Southern Vermont Engineering Company (“Southern Vermont”) to assist in a more rigorous evaluation of the development plan aimed at ensuring that the plan would comply with state and local land use laws, including the statutory criteria of Act 250. As part of its review of the project, Southern Vermont inspected deeryard maps — maps showing winter habitat for white-tailed deer — prepared by the Vermont Department of Fish and Wildlife (“Fish and Wildlife”). These maps did not indicate that any deeryards were located on the South-view property. As the project progressed towards the filing of an Act 250 permit application, Southview learned that a deeryard did in fact exist on the property and that Fish and Wildlife would accordingly oppose South-view’s permit application. Southview also reduced the planned number of units to 33 because of limited sewage disposal capacity — a common problem in the formerly glaciated mountainous regions of Vermont. Southview’s revised plan called for clustering the 33 units into five areas amounting to 12 acres, developing a total of 23 acres, and leaving the remaining acreage to the homeowner’s association, to hold in common and maintain in a managed forested condition. Southview filed an application for an Act 250 permit with the District III Environmental Commission (“the Commission”) in March 1985. Several hearings were held from April to December of 1985. In April 1986, the Commission denied the application under Criterion 8(A), 10 V.S.A. § 6086(a)(8)(A) (1984) (“Criterion 8(A)”), because of the adverse effect the project would have on the deeryard. Criterion 8, which addresses the project’s impact on the beauty of the area, historic sites and unique natural areas, provides in subdivision (A) that: A permit will not be granted if it is demonstrated by any party opposing the applicant that a development or subdivision will destroy or significantly imperil necessary wildlife habitat or any endangered species, and (i) the economic, social, cultural, recreational, or other benefit to the public from the development or subdivision will not outweigh the economic, environmental, or recreational loss to the public from the destruction or imperilment of the habitat or species, or (ii) all feasible and reasonable means of preventing or lessening the destruction, diminution, or imperilment of the habitat or species have not been or will not continue to be applied, or (iii) a reasonably acceptable alternative site is owned or controlled by the applicant which would allow the development or subdivision to fulfill its intended purpose. (Emphasis added.) The key phrase “necessary wildlife habitat” is defined as “concentrated habitat which is identifiable and is demonstrated as being decisive to the survival of a species of wildlife at any period in its life including breeding and migratory periods.” 10 V.S.A. § 6001(12) (1984). The Commission determined that the development would significantly imperil necessary wildlife habitat and that the resultant loss to the public would not be outweighed by the economic, social, cultural, recreational and other benefits to the public that the project would create. This conclusion was based on several findings of fact. The Commission found, and all parties agreed, that the proposed development was situated within a 280 acre deeryard. As the Commission, and subsequently the Board, explained, a deeryard serves as winter habitat for white-tailed deer and plays a central role in the deer’s ability to survive the winter — providing the necessary browse and other, more important, requirements for winter survival. Deer endure harsh winter conditions in large part by drawing energy from fat reserves accumulated in late summer and early fall. Browse provides only a secondary source of energy. The deer’s capacity to conserve use of its energy reserves is the most critical factor in whether it will survive the winter. The Commission and the Board found that the shelter afforded by an ideal deeryard, like the one on the Southview property, enables deer to minimize the drain on their energy reserves. Protected concentrations of softwood cover provide the best shelter, by (1) blocking cold winds; (2) retaining solar heat and reducing nighttime heat radiation; (3) reducing snow depth (because snow remains on the boughs), thereby reducing the energy deer must use to move around within the deer yard; and (4) shielding deer from human and canine activity, which, if nearby, will cause the deer to stand or move and thereby expend energy. If human activity in close proximity to the deeryard reaches a certain level, deer will abandon the deeryard. See also Leonard Lee Rue, III, The World of the White-tailed Deer 91-118 (John K. Terres ed. 1962) (describing how deer survive the winter). The Commission found that the entire deeryard in question, consisting of 280 acres, is the sole remaining, active deer-yard within a 10.7 square mile area. Forty-four acres of the Southview parcel represented one of two of the best “cover areas” within the entire deeryard. The proposed development, located in this 44-acre section of prime habitat, would destroy 10 acres of concentrated softwood cover. The Commission found that Southview’s habitat manipulation plan, which included seeding 13 acres to create softwood shelter, would not compensate for the lost softwood because it would take between twenty and forty years for the seedlings to reach the maturity necessary to afford the deer the required shelter. Southview appealed to the Vermont Environmental Board, which denied the permit application in June 1987. The Board first concluded that, as applied to Southview, the “necessary wildlife habitat” language of Criterion 8(A) required it to determine whether the deeryard on the property was decisive to the deer that used it. In so finding, the Board rejected Southview’s interpretation,' which would have allowed for the destruction of deer habitat provided that some deer survive. The Board, like the Commission, found that the Southview property was within the sole remaining deeryard in a 10.7 square mile watershed. Three hundred acres of deeryard had previously been destroyed in the Stratton area, and what has survived now contains only two primary areas of softwood cover. One of these areas — 44 acres of critical softwood cover — is within the Southview parcel, and the proposed residential subdivision, the Board determined, would destroy 10 acres of this critical softwood, while secondary effects from people living in the proposed homes would imperil the remaining 34 acres. The impact on the habitat would result in a loss of deer. The Board concluded that the proposed development would “destroy and significantly imperil necessary wildlife habitat.” See 10 V.S.A. § 6086(a)(8)(A) (1984). The Board also held that: [T]he environmental and recreational loss to the public from the destruction and imperilment of the habitat is not outweighed by the economic, social, cultural, recreational, or other benefit to the public from the project. ... the loss to the public from the destruction and imperilment of the deer habitat [that this project will cause] is significant.... The existence of the deer in this area provides an opportunity to the public to hunt and to observe deer and provides the more intangible benefit of knowing that the deer exist. The loss of the deer in this area would be significant to the public who benefit from their existence. See 10 V.S.A. § 6086(a)(8)(A)(i) (1984). The Board also found that the development would have far less impact on the deer if Southview situated it on other areas of its 88.5 acre property. In fact, Fish and Wildlife proposed alternative plans for development in other areas of the site. The Board noted that it did not believe that Southview had thoroughly investigated the possibility of less intensive development in other areas of property. The Board concluded that Southview had not “applied all feasible and reasonable means of preventing or lessening the destruction and imperilment of the deer habitat.” See 10 V.S.A. § 6086(a)(8)(A)® (1984). Southview next appealed to the Vermont Supreme Court, which affirmed the Board’s decision. In re Southview Associates, 153 Vt. 171, 179, 569 A.2d 501, 505 (1989). The Court upheld the Board’s interpretation of the term “necessary wildlife habitat,” as habitat decisive to the population that depends on it. Id. at 176, 569 A.2d at 503. Having exhausted the possibilities for appellate review of the Commission’s denial of its sole permit application, Southview did not attempt to modify the location of the units or otherwise seek to revise its application. Instead, it brought this lawsuit in federal district court. The district court dismissed Southview’s claims, apparently pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The court held that Southview had not sufficiently pled either a substantive due process or an equal protection claim. Nor, it held, did Southview’s allegations state a claim for a permanent physical occupation. Finally, the court dismissed Southview’s claim of a regulatory taking because it was not ripe. II. We decide Southview’s claims as follows. First, we address its claim that it has suffered a permanent physical occupation of its property. Second, we determine whether Southview’s regulatory taking and substantive due process claims are ripe for review and hold that they are not. This ends the opinion for my colleagues. I proceed, however, to discuss the merits of Southview’s substantive due process claim and whether the Board’s actions have effected a regulatory taking, matters as to which I am stating only my own views. We do agree that the district court’s dismissal of Southview’s action is a ruling of law which we review de novo. See Austern v. Chicago Bd. Options Exch., Inc., 898 F.2d 882, 885 (2d Cir.), cert. denied, — U.S. -, 111 S.Ct. 141, 112 L.Ed.2d 107 (1990). A. Permanent Physical Occupation Southview first argues that the district court erred because it has alleged facts which, if proved, would establish that it has been compelled to submit to a physical occupation of its property. Southview contends that the Board caused this injury by denying its application for an Act 250 permit, and by prohibiting Southview from developing its property in any way that would exclude the deer from the deeryard. These actions allegedly deprive Southview of its right to exclude the deer from its property, which amounts to a physical occupation of the property. Furthermore, Southview contends that this occupation is permanent because the Board has permanently designated portions of its property as a deeryard. If a government has committed or authorized a permanent physical occupation of property, “the Takings Clause generally requires compensation.” Yee v. City of Escondido, — U.S.-, 112 S.Ct. 1522, 1526, 118 L.Ed.2d 153 (1992); see also Lucas v. South Carolina Coastal Council, — U.S. -, 112 S.Ct. 2886, 2893, 120 L.Ed.2d 798 (1992). Indeed, as Southview correctly points out, if government action constitutes a permanent physical occupation of property, there is “a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner.” Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434-35, 102 S.Ct. 3164, 3175, 73 L.Ed.2d 868 (1982). This type of taking, requiring courts to apply a per se rule, has been termed a “physical taking,” see Yee, — U.S. at -, 112 S.Ct. at 1527, and stands in contrast to the fact-intensive inquiry accompanying a judicial determination of whether a “regulatory taking” has occurred. Id. — U.S. at-, 112 S.Ct. at 1526. Loretto helps define what constitutes a physical taking. In Loretto, the Court reviewed a New York law that required a landlord to permit a cable company to install cable equipment on his building. Loretto, 458 U.S. at 421, 102 S.Ct. at 3168. The Court held that the permanent cable installation on the landlord’s building was a permanent appropriation of a portion of the landlord’s property and, therefore, constituted a physical taking, even though it displaced only approximately one-half of a cubic foot of property. Loretto, 458 U.S. at 438 & n. 16, 102 S.Ct. at 3177 & n. 16. The Loretto Court explained that a permanent physical occupation occurs when government action permanently destroys the three rights associated with the ownership of property: the power to possess, to use, and to dispose. Id. at 435, 102 S.Ct. at 3175. First, the government (or government authorized) action must deprive the owner of both his right to possess the occupied area and his right to exclude the occupier from possession and use of it. Id. Second, the government action must “forever den[y] the owner any power to control the use of the property,” such that he “can make no nonpossessory use” of it. Id. at 436, 102 S.Ct. at 3176. Third, the government action generally leaves the owner with only “the bare legal right to dispose of the occupied space,” because the occupier ordinarily renders that right worthless, and “the purchaser will also be unable to make any use of the property.” Id. The Court added that absolute exclusivity of the occupation, and absolute deprivation of the owner’s right to use and exclude others from the property, were hallmarks of a physical taking. Id. at 435 n. 12, 102 S.Ct. at 3176 n. 12. In setting forth this test, the Court also noted that the injury was “special” because the occupation is by a stranger. Id. at 436, 102 S.Ct. at 3176. In conclusion, the Loretto Court emphasized that its determination that the facts before it constituted a permanent physical occupation was “very narrow,” and that states retained “broad power to impose appropriate restrictions upon an owner’s use of his property.” Id. at 441, 102 S.Ct. at 3179. Two subsequent cases, Yee and FCC v. Florida Power Corp., 480 U.S. 245, 107 S.Ct. 1107, 94 L.Ed.2d 282 (1987), confirm the narrow scope of so-called physical takings. In Florida Power Corp., the Court addressed a challenge to the Pole Attachments Act, 47 U.S.C. § 224 (1988), which authorizes the FCC to regulate certain rates utility companies can charge cable television operators who lease utility company poles to carry their television cables. Id. at 247, 107 S.Ct. at 1109. Despite a substantial reduction in rent effected by the FCC regulation, the Court held that no physical taking had occurred because the utility had invited the cable company to lease the poles; no government compulsion existed. Id. at 252-53, 107 S.Ct. at 1112-13. As the Court explained, “required acquiescence is at the heart of the concept of occupation,” id. at 252, 107 S.Ct. at 1112, but such required acquiescence .was notably absent in the facts before the Court. Government compulsion was also absent in Yee. The Court ruled that an Escondido, California municipal rent control ordinance applicable to mobile home park owners did “not authorize an unwanted physical occupation.” Yee, — U.S. at-, 112 S.Ct. at 1531. The petitioners, mobile home park owners, claimed that the rent control ordinance rendered the mobile home owners perpetual tenants. They also claimed that the ordinance, in mandating below-market rates, transferred from the park owners, to the existing tenants, an increase in the value of their mobile homes — a gain that the tenants could realize when they sold their mobile homes to new purchasers. In effect, the park owners contended, the ordinance transferred to the tenants “a right of physical occupation of the park owner’s land.” Id. — U.S. at-, 112 S.Ct. at 1528. The Court determined, however, that no physical taking had occurred because the government had not authorized a mandatory physical occupation of the park owner’s property. Id. The Court explained that “the government effects a physical taking only where it requires the landowner to submit to the physical occupation of his land.” Id. No government compulsion was present in Yee because the “[Petitioners voluntarily rented their land to mobile home owners,” and moreover they were not compelled to continue to do so. Id. The Court concluded that, even if the ordinance operated to transfer wealth from the park owners to the mobile home owners, it represented a regulation on the use of the petitioners’ property, rather than a per se taking by virtue of a permanent physical occupation. Id. — U.S. at- -, 112 S.Ct. at 1530-31. Application of the principles set forth in Loretto, Florida Power Corp., and Yee demonstrate that Southview has not suffered a physical taking. Initially, we note that Southview has satisfied the permanency aspect of a physical taking for the purposes of a Fed.R.Civ.P. Rule 12(b)(6) motion, because it alleges that the Board will continue, permanently, to deny South-view an Act 250 permit that would impair the deeryard. However, Southview has failed adequately to allege the remaining elements of a physical taking. Consider the three components of property rights discussed in Loretto. See Loretto, 458 U.S. at 435-36, 102 S.Ct. at 3175-76. First, Southview has not lost the right to possess the allegedly occupied land that forms part of the deeryard. Southview retains the right to exclude any persons from the land, perhaps by posting “No Trespassing” signs. Southview can even exclude the deer, perhaps with a fence, provided it does so under circumstances that do not require it to obtain an Act 250 permit — such as by the planting of an orchard. Second, Southview retains substantial power to control the use of the property. For example, it could construct improvements involving up to 10 acres of it for any purpose — construction of an inn may be possible — because Act 250 does not apply to development involving less than 10 acres. 10 V.S.A § 6001(3) (Supp.1991). Moreover, according to the terms of Act 250, Southview could engage in “construction for farming, logging or forestry purposes,” id., on the entire 44 acres of critical softwood in the deeryard without the need to seek a permit from the Commission. In addition, Southview’s owners can, to the exclusion of others, walk, camp, cross-country ski, observe wildlife, even hunt deer on this land — irrespective of whether these activities cause the deer to abandon the deer-yard. Third, because all of these uses, and many more, are available to any owner of the deeryard land, Southview’s right to sell the land is by no means worthless. The Board’s denial of Southview’s one application for an Act 250 permit can hardly be said to have “emptped] ... of any value” Southview’s right to dispose of the 44 acres of deeryard. See Loretto, 458 U.S. at 436, 102 S.Ct. at 3175. Put differently, no absolute, exclusive physical occupation exists. See id. at 435 n. 12, 102 S.Ct. at 3176 n. 12. To the extent the Board has allowed the deer to “invade” Southview’s land, this “invasion” is relatively minor, consisting of an occasional, seasonal, and limited habitation by no more than 20 deer. Minor physical intrusions are not physical takings. See id. at 426, 102 S.Ct. at 3171. Indeed, the deer activity displaces only a few sticks in the bundle of rights that constitute ownership. See Oakes, “Property Rights” in Constitutional Analysis Today, 56 Wash.L.Rev. 583, 589 (1981). In any event, no absolute dispossession of Southview’s property rights has occurred. See Loretto, 458 U.S. at 435 n. 12, 102 S.Ct. at 3176 n. 12. Under Loretto, there has been no physical taking. Application of the government compulsion requirement — central to the results in Florida Power Corp. and Yee — yields a similar result. In Yee, there was no government compulsion because the mobile home park owners voluntarily rented their land to mobile home owners, and they were not compelled to continue to do so. Yee, — U.S. at-, 112 S.Ct. at 1528. The Court considered the park owners’ submission to the rent control ordinance, as well as their submission to the resultant alleged physical invasion, to have been voluntary even though the owners were apparently engaged in this business before the ordinance was enacted. Here, even if the Board’s action were a permanent physical occupation, there was no government compulsion. Just as the mobile home park owners voluntarily rented their land in Yee and, in so doing, engaged in activity that subjected them to the effects of the rent control ordinance, id., Southview voluntarily proposed to construct a residential subdivision development project, and, in so doing, engaged in activity that subjected it to the Act 250 review process. Moreover,, at the time Southview purchased the land it knew that the project would be subjected to Act 250 scrutiny. Denial of the Act 250 permit— foreclosing one configuration of a development plan — represents a regulation of the use of Southview’s property, rather than a per se physical taking. See id., — U.S. at -, 112 S.Ct. at 1528-31; see also Kaufman v. City of New York, 717 F.Supp. 84, 94-95 (S.D.N.Y.), aff'd, 891 F.2d 446 (2d Cir.1989), cert. denied, 495 U.S. 957, 110 S.Ct. 2561, 109 L.Ed.2d 744 (1990). Accordingly, Southview’s physical taking claim was properly dismissed. B. Ripeness We next must determine whether Southview’s substantive due process and regulatory takings claims are ripe for review. As the district court explained, Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), sets forth a two-pronged test for assessing the ripeness of takings-type claims. The first prong requires the government entity charged with enforcing the regulations at issue to have rendered' a “final decision.” Id. at 186, 105 S.Ct. at 3116. The second prong requires the plaintiff to have sought compensation if the state provides a “reasonable, certain and adequate provision for obtaining compensation.” Id. at 194, 105 S.Ct. at 3120 (quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 124-25, 95 S.Ct. 335, 349, 42 L.Ed.2d 320 (1974)). 1) Applicability of Ripeness Inquiry Here we examine whether each of the two prongs of the Williamson ripeness inquiry apply to Southview’s (1) taking claim; (2) substantive due process claim premised on the theory that regulation has gone “too far”; and (3) substantive due process claim premised on arbitrary and capricious government conduct. Southview first argues that because it has properly alleged a physical taking, and the Williamson ripeness test does not apply to physical takings, see Hall v. City of Santa Barbara, 833 F.2d 1270, 1281-82 n. 28 (9th Cir.1986), cert. denied, 485 U.S. 940, 108 S.Ct. 1120, 99 L.Ed.2d 281 (1988), the district court erred in dismissing its claim under Williamson. We have concluded, however, that Southview has failed adequately to allege a physical taking claim, and instead the denial of the permit amounts to a regulation on Southview’s use of its property. Thus, Southview’s takings argument represents a regulatory taking claim to which both prongs of the Williamson ripeness test are fully applicable. Southview also argues that its substantive due process claim is immune from ripeness scrutiny. Before addressing the ripeness of this claim, we note that Southview is apparently advancing two distinct substantive due process theories. Under the first, it is well established that a government land use decision may give rise to a substantive due process violation if the de-cisionmaking process is arbitrary and capricious. Under a second, less developed approach, one to which the Supreme Court has yet to give its imprimatur, “regulation that goes so far that it has the same effect as a taking by eminent domain is an invalid exercise of the police power, violative of the Due Process Clause.” Williamson, 473 U.S. at 197, 105 S.Ct. at 3122; see also William B. Stoebuck, Police Power, Takings, and Due Process, 37 Wash. & Lee L.Rev. 1057, 1097-99 (1980) (discussing Fred F. French Investing Co. v. City of New York, 39 N.Y.2d 587, 385 N.Y.S.2d 5, 350 N.E.2d 381, appeal dismissed for want of juris, and cert. denied, 429 U.S. 990, 97 S.Ct. 515, 50 L.Ed.2d 602 (1976)). We next examine each substantive due process theory to determine whether Williamson applies. Contrary to Southview’s assertion, a substantive due process claim premised on the theory that a regulation has gone too far is subject to both prongs of the Williamson ripeness test. Such a claim remains premature “until a final decision is made as to how the regulations will be applied” to a landowner’s property. Williamson, 473 U.S. at 200, 105 S.Ct. at 3123; see Fide v. Sarasota County, 895 F.2d 1326, 1329 (11th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1073, 112 L.Ed.2d 1179 (1991). Without such a final decision, a court cannot determine adequately the economic loss — a central factor in the inquiry — occasioned by the application of the regulatory restrictions. Unless a final decision has been rendered, it remains unclear just how far the regulation goes. Williamson, 473 U.S. at 199-200, 105 S.Ct. at 3123; Eide, 895 F.2d at 1329; see Lucas, - U.S. at-, 112 S.Ct. at 2925-26 (Statement of Souter, J.). The compensation component of the Williamson test is also applicable to a substantive due process claim predicated on the notion that the regulation has gone too far. Culebras Enters. Corp. v. Rivera Rios, 813 F.2d 506, 515-16 (1st Cir.1987). If the state provides an acceptable procedure for obtaining compensation, the state’s regulatory action will generally not exceed its police powers. See id. at 516. Southview’s substantive due process claim premised on arbitrary and capricious government conduct, however, is subject to only the final decision prong of the Williamson ripeness test. Unless a court has a final decision before it, it cannot determine whether a claimant was deprived of property and whether the government conduct was arbitrary or capricious. Landmark Land Co. v. Buchanan, 874 F.2d 717, 722 (10th Cir.1989); see Herrington v. County of Sonoma, 834 F.2d 1488, 1494-95 (9th Cir.1987), cert. denied, 489 U.S. 1090, 109 S.Ct. 1557, 103 L.Ed.2d 860 (1989); see also Del Monte Dunes, Ltd. v. City of Monterey, 920 F.2d 1496, 1507 (9th Cir.1990) (“In evaluating the ripeness of due process or equal protection claims arising out of the application of land use regulations, we employ the same final decision requirement that applies to regulatory taking claims.”); hut see Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1576 n. 11 (11th Cir.1989) (stating, in dicta, that it is “not at all clear” that final decision requirement should apply to substantive due process claim premised on arbitrary zoning decision). However, the second Williamson requirement, that the plaintiff seek an available state remedy, is not applicable to this type of substantive due process claim. Sinaloa Lake Owners Ass’n v. City of Simi Valley, 882 F.2d 1398, 1404, 1407 (9th Cir.1989), cert. denied, 494 U.S. 1016, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990). The requirement that a plaintiff seek compensation in state court is, as we discuss below, derived from the Takings Clause, see id. at 1404, to which a substantive due process claim, premised on arbitrary and capricious government conduct, is largely unrelated. In sum, both prongs of the Williamson test apply to Southview’s taking claim, as well as to both substantive due process theories, except the compensation requirement is inapplicable to Southview’s substantive due process claim premised on arbitrary and capricious government conduct. 2) Final Decision Requirement Southview next argues that the Board’s application of Criterion 8(A) of Act 250 constituted a final decision under Williamson, because given the Vermont Supreme Court’s affirmance of the Board’s decision, there exists no other avenue for Southview to contest the denial of an Act 250 permit for its proposed development. Southview also contends that once the Department determined that its property was part of a deeryard, the Board decided to bar Southview from using its property in a way that would exclude deer from it. Despite these allegations, Southview cannot show that it has obtained a final decision. In Williamson, a developer claimed that the county zoning commission’s denial of approval of his plans for a residential subdivision constituted a regulatory taking. Williamson, 473 U.S. at 182, 105 S.Ct. at 3114. The developer could have sought “variances that would have allowed it to develop the property according to its proposed plat.” Id. at 188, 105 S.Ct. at 3117. Based largely on the developer’s failure to pursue such variances, the Court found that the developer had not yet obtained a final, reviewable decision — the type of decision that would “conclusively determine whether [the developer] will be denied all reasonable beneficial use of its property.” Id. at 194, 105 S.Ct. at 3120. The Court explained the rationale for the final decision requirement as follows: Our reluctance to examine taking claims until such a final decision has been made is compelled by the very nature of the inquiry required by the Just Compensation Clause.... this Court consistently has indicated that among the factors of particular significance in the inquiry are the economic impact of the challenged action and the extent to which it interferes with reasonable investment-backed expectations. Those factors simply cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question. Id. at 190-91, 105 S.Ct. at 3118-19 (citations omitted). In addition to Williamson, several other Supreme Court decisions help define the contours of a “final decision.” As the Wil liamson Court explained, in Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), the plaintiffs taking claim was unripe because, although the city commission had rejected one development plan, “the property owners had not sought approval for any other plan, and it therefore was not clear whether the Commission would deny approval for all uses that would enable the plaintiffs to derive economic benefit from the property.” Williamson, 473 U.S. at 187, 105 S.Ct. at 3117 (citing Penn Central, 438 U.S. at 136-37, 98 S.Ct. at 2665-66). And in MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 351-52, 106 S.Ct. 2561, 2567-68, 91 L.Ed.2d 285 (1986), the county Board of Supervisors affirmed the county Planning Commission’s rejection of a landowner’s subdivision plan. The Court held that, based on the pleadings which revealed that only one subdivision proposal had been submitted and only one had been denied approval, the landowner had failed to satisfy the final decision requirement because the possibility existed that “some development will be permitted.” Id. at 352, 106 S.Ct. at 2567. We do not believe that the Supreme Court’s recent holding in Lucas undermines the authority of either Williamson, Penn Central, or MacDonald, nor has it any bearing on whether Southview has obtained a final decision. In Lucas, the Court addressed a regulatory taking claim asserted by Lucas against the South Carolina Coastal Council. The Court found Lucas’ temporary taking claim ripe despite his failure to use a discretionary “special permit” procedure which may have enabled him to develop his land. The temporary taking claim covered a two-year period. Lucas, — U.S. at -, 112 S.Ct. at 2891-92. The “special permit” procedure, however, did not exist when the taking occurred, nor did it exist when the state trial court found a regulatory taking for which compensation was due. The procedure was implemented only after appeal was taken to the South Carolina Supreme Court. That court found that no taking had occurred and reversed the trial court’s ruling on the merits. The Supreme Court of the United States apparently relied on three factors in finding Lucas’ claim ripe: (1) the “special permit” procedure was unavailable to Lucas during the period of his alleged temporary taking; (2) the South Carolina Coastal Council stipulated that, during this period, any other efforts to obtain approval for development would have been futile; and (3) the South Carolina Supreme Court’s decision rejecting Lucas’ taking claim on the merits barred him from seeking relief, in state court, for the temporary taking. Id. — U.S. at-& n. 3, 112 S.Ct. at 2890-92 & n. 3. Given these factors — particularly the fact that the “special permit” procedure was nonexistent during the relevant period as well as the futility exception to the final decision requirement, see, e.g., Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1454, modified, 830 F.2d 968 (9th Cir.1987), cert. denied, 484 U.S. 1043, 108 S.Ct. 775, 98 L.Ed.2d 861 (1988) — the Court’s determination that Lucas’ temporary taking claim was ripe is consistent with Williamson, Penn Central, and MacDonald. Moreover, none of the three factors relied on by the Court parallel the facts before us. Accordingly, we apply Williamson, Penn Central, and MacDonald to the facts at hand and hold that Southview has not yet obtained a final decision. Like the plaintiffs in Penn Central and MacDonald, Southview has submitted, and the Board has denied, only one application for an Act 250 permit. The Board’s rejection of Southview’s 33-unit subdivision proposal in no way precludes Southview from submitting another proposal, and it is “not clear whether the [Board will] deny approval for all uses that would enable the plaintiffs to derive economic benefit from the property.” Williamson, 473 U.S. at 187, 105 S.Ct. at 3117 (citing Penn Central, 438 U.S. at 136-37, 98 S.Ct. at 2665-66). Although Southview argues that submission of another application would be futile on account of the Department’s designation of a deeryard on the property, this argument is fatally undercut by the decision of the Board. We can infer from the Board’s decision that it would be receptive to a subdivision proposal that placed lots in a different segment of the 88.5 acre property so as to minimize impact on the critical areas of the deeryard. The Board found that “[t]he development would have far less impact on the deer if it were located on other areas of the property.” The Board also concluded that Southview had not undertaken all feasible and reasonable means of reducing the development’s effect on the deeryard, and it was “not persuaded that the Applicant has thoroughly investigated the possibility of less intensive development in other areas of the site.” As in Williamson, where it “appealed] that variances could have been granted” to resolve the majority of the Planning Commission’s objections to the subdivision plan, Williamson, 473 U.S. at 188, 105 S.Ct. at 3118, here it also appears that Southview can obtain a permit for a subdivision situated on another part of its property. Therefore, it is likely that “some development will be permitted,” MacDonald, 477 U.S. at 352, 106 S.Ct. at 2567, even if Southview proposes development that requires further Act 250 review. Although the Board has applied Act 250 to the one particular subdivision proposal in question, it has yet to provide “a final, definitive position regarding how it will apply the regulations at issue to the particular land in question.” Williamson, 473 U.S. at 191, 105 S.Ct. at 3119. For these reasons, Southview’s taking and substantive due process claims remain unripe. 3) State Court Compensation Requirement Southview next argues that the district court erred in holding that it failed to meet the compensation prong of the Williamson test. As the district court stated, Williamson requires an owner to seek compensation from the state, prior to asserting a regulatory taking claim, if the state has a “reasonable, certain and adequate provision for obtaining compensation.” Williamson, 473 U.S. at 194, 105 S.Ct. at 3120 (quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 124-25, 95 S.Ct. 335, 348-49, 42 L.Ed.2d 320 (1974)). This requirement stems from the Fifth Amendment, which “does not proscribe the taking of property, it proscribes taking without just compensation.” Id. (citing Hodel v. Virginia Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 297 n. 40, 101 S.Ct. 2352, 2371 n. 40, 69 L.Ed.2d 1 (1981)). Thus, a landowner “has not suffered a violation of the Just Compensation Clause until the owner has unsuccessfully attempted to obtain just compensation through the procedures provided by the State.” Id. 473 U.S. at 195, 105 S.Ct. at 3120. The Williamson Court found that Tennessee state courts had interpreted state statutory law to allow recovery when restrictive development regulations give rise to a taking. Id. at 196, 105 S.Ct. at 3121. The Court then held that because the claimant had not shown the Tennessee procedure to be “unavailable or inadequate ... until it has utilized that procedure, its taking claim is premature.” Id. at 197, 105 S.Ct. at 3122. Subsequent decisions establish that a state compensation procedure will be deemed available and adequate within the meaning of Williamson even when that procedure remains unsure and undeveloped. Austin v. City and County of Honolulu, 840 F.2d 678, 680-81 (9th Cir.), cert. denied, 488 U.S. 852, 109 S.Ct. 136, 102 L.Ed.2d 109 (1988); see Southern Pacific Transp. Co. v. City of Los Angeles, 922 F.2d 498, 505 n. 8 (9th Cir.1990), cert. denied, — U.S. -, 112 S.Ct. 382, 116 L.Ed.2d 333 (1991). In Austin, the court found no Hawaiian cases recognizing an inverse condemnation action, and held that until Hawaiian courts rejected such actions, a plaintiff Could not be excused from seeking relief in state court before filing a taking claim in federal court. Austin, 840 F.2d at 681; see also Culebras Enters. Corp. v. Rivera Rios, 813 F.2d 506, 513-15 (1st Cir.1987) (taking claimant required to seek compensation from the Commonwealth of Puerto Rico, given that the Supreme Court of Puerto Rico has discussed the availability of, but has never awarded damages in, an inverse condemnation action); Littlefield v. City of Afton, 785 F.2d 596, 609 (8th Cir.1986) (Plaintiff must seek compensation from the State of Minnesota, “[ujntil the Minnesota courts have ruled that an inverse condemnation procedure may not be brought or denies damages in such an action.”). Southview contends, however, that Preseault v. ICC, 494 U.S. 1, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990), as well as Williamson, mandate that only a statutory remedy can represent an adequate state compensation procedure. Southview would have us excuse it from seeking compensation in state court because Vermont has no statutory provision for inverse condemnation. Nothing in either Preseault or Williamson, however, states or implies that the compensation procedure need be statutory. We therefore reject Southview’s contention that only a statutory compensation scheme can suffice, and we see no reason to depart from the view, expressed in Austin and other cases, of what represents an adequate state procedure for obtaining compensation for a taking. We next examine Vermont law to determine whether it provides such an adequate procedure. Our search of the Vermont Reports has revealed nothing — neither judicial recognition nor rejection of inverse condemnation actions. Nor has Vermont legislated a cause of action for inverse condemnation. Yet Vermont provides a route whereby Southview may seek compensation in its courts. The Vermont Constitution has always provided — and was the first state constitution to do so — that “whenever any person’s property is taken for the use of the public, the owner ought to receive an equivalent in money.” Vt. Const, ch. 1, art. 2. The Supreme Court of Vermont has relied on this provision to rule favorably on a cause of action for compensation where government has taken private property through physical damage rather than an eminent domain proceeding. See, e.g., Timms v. State, 139 Vt. 343, 344-46, 428 A.2d 1125, 1126 (1981) (awarding damages to landowner, on account of a taking of private property, precipitated by the state’s damage to landowner’s well); Sargent v. Town of Cornwall, 130 Vt. 323, 328-29, 292 A.2d 818, 822 (1972) (holding that plaintiff stated a cause of action for a taking, for which municipality must compensate, on account of flooding of private property); Griswold v. Town School District, 117 Vt. 224, 224-27, 88 A.2d 829, 829-31 (1952) (holding that plaintiff stated a cause of action for a taking on account of the school district’s diversion and appropriation of plaintiff’s water supply). Thus, the Vermont Supreme Court recognizes a cause of action for a taking generally, even if it has yet to decide whether recovery can be had for a regulatory taking. These precedents indicate that Southview cannot establish, at this time, that Vermont’s procedure is either “unavailable or inadequate.” Williamson, 473 U.S. at 197, 105 S.Ct. at 3122. Vermont has an adequate procedure that Southview must use — a suit in state court — before it asserts a section 1983 claim based on a regulatory taking. Because Southview has never sought compensation in the Vermont courts, its taking and substantive due process claims (premised on the theory that the Board has gone “too far”) are not ripe. Accordingly, we affirm the dismissal of Southview’s regulatory taking and due process claims for lack of ripeness, and for my colleagues this ends the opinion so that anything that follows represents only my own views and not the opinion of the panel. Were we to reach the substantive due process and regulatory claims on the merits — i.e., if our determination on the ripeness issue was in some way erroneous — I would dismiss them on their merits. Thus, I address Southview’s next argument, namely, that the district court improperly dismissed its claim that the Board violated its right to substantive due process because the Board’s action — denial of an Act 250 permit — deprived it of “fundamental [property] rights without any compelling state interest narrowly tailored to accomplish the purported public purpose.” Southview also contends that it alleged sufficient facts to support its claim that the Board acted arbitrarily and capriciously in denying the Act 250 permit. I disagree. 1) Arbitrary and Capricious Government Conduct In evaluating a landowner’s claim that a denial of a permit for a regulated use of land offends the landowner’s right to substantive due process under the “arbitrary and capricious” government conduct theory, a court first asks whether “an entitlement exists in what has been applied for ... instead of simply recognizing the owner’s indisputable property interest in the land he owns and asking whether ... government has exceeded the limits of substantive due process in regulating the plaintiff’s use of his property by denying the application arbitrarily and capriciously.” RRI Realty Corp. v. Incorporated Village of Southhampton, 870 F.2d 911, 917 (2d Cir.), cert. denied, 493 U.S. 893, 110 S.Ct. 240, 107 L.Ed.2d 191 (1989); see also Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 60 (2d Cir.1985) (Because zoning board, even if acting lawfully, was not required to grant zoning approval, plaintiffs “lack any property interest proteetible under the Due Process Clause.”). This inquiry, the threshold Board of Regents v. Roth entitlement test, stems from the notion that a property right exists in what is sought — in addition to the property interest that exists in what is owned — provided there is a “legitimate claim of entitlement.” RRI Realty Corp., 870 F.2d at 915 (citing Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)). A landowner has a legitimate claim of entitlement when, “absent the alleged denial of due process, there is either a certainty or a very strong likelihood that the application would have been granted.” Yale Auto Parts, 758 F.2d at 59. Moreover, RRI Realty Corp. teaches that this test does not turn on the probability that the government authority will approve the use that the landowner seeks. RRI Realty Corp., 870 F.2d at 918. Instead, the central factor is the degree of discretion possessed by the regulating body. Id.; see also Dean Tarry Corp. v. Friedlander, 826 F.2d 210, 213 (2d Cir.1987) (Property owner’s expectation of success in receiving planning board approval for his project did not give rise to a cognizable property right on account of the broad discretion that the zoning ordinance conferred on the planning board.) And the requisite “strong likelihood” of approval exists “only when the discretion of the issuing agency is so narrowly circumscribed that approval of a proper application is virtually assured.” RRI Realty Corp., 870 F.2d at 918. In RRI Realty Corp., we found that the official body at issue, the Village of Southhampton Architectural Review Board, enjoyed wide discretion in passing on design plans on account of its power to “exercis[e] sound judgment and ... reject[ ] plans which, in its opinion, are not of harmonious character because of proposed style, materials, mass, line, color.” Id. at 919 (quoting Southhampton, N.Y., Code § 116.33B (1984)). Thus, we direct our attention to the powers of the Vermont Environmental Board to determine whether it lacked the discretion to deny the Act 250 permit — thereby according Southview an entitlement to the permit. The central issue before the Board was whether Southview had met the requirements of Criterion 8(A). Thus, the Board first had to determine whether any party opposing Southview’s application had demonstrated that the subdivision would “destroy or significantly imperil necessary wildlife habitat.” See 10 V.S.A. § 6086(a)(8)(A) (1984). If the Board answered this question in the affirmative, it also had to decide (1) whether “the economic, environmental or recreational loss to the public from the destruction or imperilment of the habitat” is outweighed by the “economic, social, cultural, recreational or other benefit to the public” that the subdivision would yield, id.; (2) whether “all feasiblé and reasonable means of preventing or lessening the destruction, diminution or imperilment of the habitat” have been or will continue to be applied, id.; and (3) whether the applicant owns no “reasonably acceptable alternative site” which would “allow the ... subdivision to fulfill its intended purpose.” Id. As demonstrated by its decision in this case, the Board may deny a permit if it determines that the applicant’s project fails to meet one of these three “subcriteria.” These standards conferred considerable discretion on the Board in its determination of whether Southview had met the relevant Act 250 criteria. All parties agreed that the proposed development was in a deer-yard. The Board had to decide how the subdivision would affect the deer’s habitat, and whether that habitat was “necessary” within the meaning of the statute. Given its finding on these issues, the Board also had to examine the “subcriteria.” Application of any one of them — requiring the Board to weigh the public benefit and loss, or make “reasonableness” determinations — would call for the exercise of a large measure of discretion. I would hold that, as in Yale Auto Parts and Dean Tarry, this discretion prevented Southview’s “expectation of success from rising to the level of certainty required to give rise to a ... property right” cognizable under the Fifth and Fourteenth Amendments. Dean Tarry, 826 F.2d at 213 (citing Yale Auto Parts, 758 F.2d at 59-60). Thus, my view is that Southview’s substantive due process claim must fail. Even if Southview’s expectation of receiving an Act 250 permit were sufficiently certain to give rise to a cognizable property right, Southview has still failed adequately to allege a substantive due process violation. On a general level, substantive due process protects against arbitrary government conduct. United States v. Certain Real Property, 954 F.2d 29, 33 (2d Cir.) (citing Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986)), petition for cert. filed (April 20, 1992). In the zoning context, a government decision regulating a landowner’s use of his property offends substantive due process if the government action is arbitrary or irrational. See Brady v. Town of Colchester, 863 F.2d 205, 215 (2d Cir.1988); see also Del Monte Dunes, Ltd. v. City of Monterey, 920 F.2d 1496, 1508 (9th Cir.1990). Government regulation of a landowner’s use of his property is deemed arbitrary or irrational, and thus violates his right to substantive due process, only when government acts with “no legitimate reason for its decision.” Shelton v. City of College Station, 780 F.2d 475, 483 (5th Cir.) (en banc), cert. denied, 477 U.S. 905 & 479 U.S. 822, 106 S.Ct. 3276 & 107 S.Ct. 89, 91 L.Ed.2d 566 & 93 L.Ed.2d 41 (1986); see also Village of Euclid v. Ambler Realty Co., 212 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926) (zoning ordinance violates substantive due process only if it is “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare”); Sinaloa Lake Owners Ass’n v. City of Simi Valley, 882 F.2d 1398, 1409 (9th Cir.1989) (“[Mjalicious, irrational and plainly arbitrary actions are not within the legitimate purview of the state’s power.”), cert. denied, 494 U.S. 1016, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990). In addition, our precedents caution that, although we will not countenance a constitutional violation, federal courts should not become fora for appellate review of “nonconstitutional land use determinations.” Brady, 863 F.2d at 215 (quoting Sullivan v. Town of Salem, 805 F.2d 81, 82 (2d Cir.1986)). In support of its claim that the Board acted arbitrarily and irrationally, South-view’s complaint alleges that “similar residential subdivisions ... on lands essentially identical in character” to its property “were approved by the District II Environmental Commission,” and those developments “destroyed or imperiled Deer Yards identified by the Department.” South-view’s complaint also alleges that the white-tailed deer “are neither endangered nor threatened species in the State of Vermont” and “in fact, the State, each Fall, encourages the slaughter of an unlimited number of ... deer.” These alleged facts, even if proved, would not in my opinion establish that the Board acted irrationally or arbitrarily in denying the permit application. Southview’s assertions regarding the treatment of other similar developments are more relevant to a claim of a denial of equal protection, rather than a violation of substantive due process. Nevertheless, if identically situated developments were granted permits, perhaps an inference of arbitrary or irrational conduct might arise. Southview, however, alleged only that “similar residential developments” on “essentially identical” properties were granted permits (emphasis added). Moreover, had Southview amended its complaint to allege that identically situated developments were granted permits, dismissal would still be required. If the Board had “ ‘at least debatable’ ” grounds, Shelton, 780 F.2d at 483 (citing Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S.Ct. 715, 724, 66 L.Ed.2d 659 (1981)), for distinguishing its action on Southview’s application from its conduct with respect to other subdivisions, the Board did not act arbitrarily and capriciously and did not deprive Southview of substantive due process. See id. at 485, 101 S.Ct. at 735. Southview apparently did not assert any arguments, either before the Commission or the Board, regarding the treatment accorded other subdivisions. The Board, therefore, did not specifically compare Southview’s proposal to similar subdivisions, and it set forth no grounds for distinguishing the Southview plan from other developments. The Board based its decision on the merits of Southview’s project. In so doing, the Board did underscore, however, that the property was situated within the only active deeryard remaining in a 10.7 square mile area, and the development contemplated destruction of 10 acres of the most important habitat in this deer-yard. These facts indicate that the South-view project was configured in a way that would inflict very serious damage to a deeryard unique to the area. Thus, these special factors underlying the denial of Southview’s permit undermine any inference that the Board lacked “at least debatable grounds” to distinguish the Southview plan from other developments to which permits were allegedly granted. Under these circumstances, I believe it is Southview’s burden to allege some facts tending to prove that the Board had no grounds to distinguish the complained of government action from the government treatment of identically situated applicants. Southview’s complaint is devoid of any such facts. Southview’s bare allegation regarding other developments, without more, hardly precludes the existence of “at least debatable grounds” for distinguishing the Board’s denial of Southview’s application from the other unnamed residential developments. Therefore, Southview’s allegations regarding other developments are, I think, insufficient to enable it to establish a denial of substantive due process. See Shelton, 780 F.2d at 485. Southview’s allegations regarding the incongruity of protecting deer habitat in light of the health of the Vermont white-tailed deer population and the State’s hunting policy are also insufficient in my opinion. To the extent Southview questions the policy implicit in the protection of deer habitat, Southview’s dispute is with Act 250 and the Vermont Supreme Court’s interpretation of it, not with the rationality of, or justifications motivating, the Board’s denial of its application. It was the Vermont Supreme Court, not the Board, that finally determined that “a ‘necessary wildlife habitat' under Act 250 is one that is decisive to the survival” of those members of the species that depend on it. Southview, 158 Vt. at 176, 569 A.2d at 503 (quoting 10 V.S.A. § 6086(a)(8)(A) (1984)). Southview, however, does not challenge the statute. Furthermore, neither the Board’s alleged treatment of other developments nor the alleged hypocrisy of protecting deer habitat negate the conclusion that the Board “articulate[d] a rational basis that was indisputably related to the general welfare, [and] there was no question but that the articulated basis was a basis for [the] decision.” Shelton, 780 F.2d at 481. Indeed, there is no reason to believe, and South-view has not alleged, that the justifications articulated by the Board were not the sole reasons for its decision. Southview does not dispute that the Board denied the permit because (1) the proposed subdivision was located in the last remaining deeryard in the 10.7 mile watershed; (2) the proposed subdivision would destroy 10 acres of critical softwood cover within the property and imperil the remaining 34; and (3) Southview failed to situate the subdivision on other areas of its property where the development would have had far less impact on the deer. Nowhere does Southview claim that the Board did not rely on these findings in reaching its decision, nor does it dispute the veracity of these findings. Indeed, it agreed that the development was within a deeryard. Nor does Southview allege that the Board acted contrary to the dictates of Act 250 or contrary to any other state law. By contrast, when our Court, as well as other Courts of Appeal, have found an allegation of a deprivation of substantive due process sufficient to warrant an adverse judgment against a governmental body, the plaintiffs have pleaded or presented evidence indicating that the body acted beyond its authority, without justification, or committed other egregious misconduct. See, e.g., Brady, 863 F.2d at 215-16 (If members of town planning and zoning commission “had no authority under state law to revoke [plaintiff’s] building permit, to demand that [plaintiff] apply for zoning permits and certificates of occupancy, and to subject him to the overall approval process, then a trier of fact could conclude that there was no ‘rational basis’ for the [commission’s] actions,” and therefore it violated plaintiff’s substantive due process rights.); Sullivan v. Town of Salem, 805 F.2d 81, 85 (2d Cir.1986) (If town officials refused to issue certificates of occupancy to developer for a reason that was contrary to state law, such a refusal “would constitute a deprivation of property without due process”); Del Monte Dunes, Ltd. v. City of Monterey, 920 F.2d 1496, 1508 (9th Cir.1990) (Plaintiffs properly stated a due process claim by alleging, with supporting affidavits, that the city had approved their 190-unit project but later abruptly rejected the plan for broad conclusory reasons; and that the rejection was actually motivated by political pressure rather than by legitimate regulatory concerns.); Bello v. Walker, 840 F.2d 1124, 1129-30 (3rd Cir.1988) (If plaintiff proves that municipal officials interfered with the municipality’s building permit issuance process based on partisan political or personal reasons unrelated to the merits of the permit application, plaintiff would establish a substantive due process violation.), cert. denied, 488 U.S. 868, 109 S.Ct. 176, 102 L.Ed.2d 145 (1988). Southview’s allegations regarding the Board’s conduct fail to approach this kind of illegitimate government action. Even if true, the allegations would not demonstrate that the Board’s decision was arbitrary, irrational or otherwise lacking in legitimate justification, and accordingly Southview’s substantive due process claim should fail on the merits. Were the regulatory claim ripe, I would dismiss it anyway on the ground that Southview’s allegations are insufficient to state a claim that the Board has committed a regulatory taking. In determining what constitutes a taking, I would begin with the classic, if vague, formulation provided by Mr. Justice Holmes: “[WJhile property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922). In Mahon, Pennsylvania’s statute went “too far” by forbidding, under certain circumstances, the mining of anthracite coal when it would cause subsistence of a dwelling, even if the coal company owned the right to mine the coal as well as the right of support of the surface. Id. at 412-13, 43 S.Ct. at 159. Since Mahon, courts have struggled with limited success to devise a principled yardstick for measuring when regulation has reached “too far.” See Rose, supra, at 562. The shortcomings of the Mahon approach — shortcomings that still fuel seemingly inconsistent applications of the Takings Clause — were perhaps revealed in Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568 (1928), decided less than six years after Mahon. In an opinion joined in by Mr. Justice Holmes, the Court examined a Virginia statute that required landowners to cut ornamental red cedar trees, infected with cedar rust, in order to protect apple orchards from the disease. Miller, 276 U.S. at 277-78, 48 S.Ct. at 246-47. Cedar rust did no harm to the infected red cedar trees, but the state-ordered destruction of the trees allegedly caused the plaintiffs an uncompensated five to seven thousand dollar loss in the value of their property. The Court upheld the statute in the face of a taking and due process challenge without even mentioning, much less distinguishing, Mahon. Miller, 276 U.S. at 279-81, 48 S.Ct. at 247-48; see Oakes, supra, at 605-06. Unsurprisingly, in the wake of Mahon, Miller and other cases, the Court has proved unable to arrive at a “set formula to determine where [land use] regulation ends and taking begins.” Goldblatt v. Town of Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 990, 8 L.Ed.2d 130 (1962); see also Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978). Instead, the Court “engage[s] ... in essentially ad hoc, factual inquiries” to decide “when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.” Penn Central, 438 U.S. at 124, 98 S.Ct. at 2659 (citing Goldblatt, 369 U.S. at 594, 82 S.Ct. at 990); see also Lucas, — U.S. at -, 112 S.Ct. at 2893; Kaiser Aetna v. United States, 444 U.S. 164, 175, 100 S.Ct. 383, 390, 62 L.Ed.2d 332 (1979). Even though this inquiry may be “ad hoc,” the cases provide some additional guidance. A regulation will not effect a compensable taking if it “substantially advance[s] legitimate state interests” and leaves the “owner [with an] economically viable use of his land.” Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980); see Keystone, 480 U.S. at 485, 107 S.Ct. at 1242; Nollan v. California Coastal Commission, 483 U.S. 825, 834, 107 S.Ct. 3141, 3147, 97 L.Ed.2d 677 (1987). By contrast, a taking will generally be deemed to have occurred if the regulation authorizes a permanent physical occupation, see Yee v. City of Escondido, — U.S. -, -, 112 S.Ct. 1522, 1526, 118 L.Ed.2d 153 (1992), or, in the “extraordinary circumstance,” Lucas, — U.S. at -, 112 S.Ct. at 2894, when regulation “deprives land of all economically beneficial use.” Id. — U.S. at-, 112 S.Ct. at 2900 (emphasis added). 1) Economic Impact In deciding whether Southview retains any economically viable use of its land (as opposed to none, the dictionary opposite of “all”), I note that a regulation that forbids a landowner from putting his property to its most economically beneficial use does not, in and of itself, give rise to a taking. See Goldblatt, 369 U.S. at 592, 82 S.Ct. at 989; see also Andrus v. Allard, 444 U.S. 51, 66, 100 S.Ct. 318, 327, 62 L.Ed.2d 210 (1979) (upholding regulation even though it undeniably “prevented the most profitable use” of the claimant’s property). Indeed, “the Court has repeatedly upheld regulations that destroy or adversely affect real property interests.” Keystone, 480 U.S. at 489 n. 18, 107 S.Ct. at 1244 n. 18 (citing cases). As Mr. Justice Holmes explained, these losses incurred by landowners reflect the fact that “[government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change.” Mahon, 260 U.S. at 413, 43 S.Ct. at 159; see also Andrus, 444 U.S. at 65, 100 S.Ct. at 327 (“[GJovernment regulation — by definition— involves the adjustment of rights for the public good.”). With this in mind, I would turn to the economic effect, on Southview, of the Board’s application of Act 250. Southview purchased the property at issue for $225,000. Had a permit been granted, it alleges that it would have incurred expenses for construction of roads, sewers and utilities and the like, as well as marketing expenses, totalling $1,155,000. Southview contends that it would have reaped profits of between $2,100,000 and $3,125,000 from the sale of 33 lots — an approximate return on investment of between % 150 and % 225. Moreover, Southview claims that because 44 acres of its land has been designated a deeryard, it is unable to develop its property. It alleges that the Board “deprived [it] of all economically viable uses of that [property in relation to Southview’s reasonable expectations that the [property would be developed as a planned residential subdivision, and ... further prevented Southview frohi earning a reasonable return on its investment commensurate with its reasonable investment-backed expectations.” Southview also asserts that it made an “extensive effort to reduce the scale of the [p]roposed [development to satisfy the concerns” the Board had regarding the deeryard. In assessing whether Southview retains an economically viable use of its land, I would first reject Southview’s assertion regarding its “extensive effort” to reduce the scale of its development to satisfy the Board since no facts support this assertion. Indeed the Board found, and Southview does not dispute, that limited sewage capacity required it to scale down its project from 78 to 33 lots. Despite the Board’s decision with respect to its application, and the alleged permanent designation of 44 acres of its property as deeryard, the Board’s actions have no effect on Southview’s ability to use the parcel in a way that does not require Act 250 review. The Board’s decision leaves intact Southview’s existing ability to 1) construct improvements for farming, logging or forestry, 10 V.S.A § 6001(3) (Supp.1991) (an orchard or a Christmas tree farm may be possible); 2) construct residential or commercial improvements “involving” less than ten acres of the property, id., (an inn or private wooded estate, both common usages in the region, may be possible); 3) construct and sell up to nine homes, id., (provided such activity involves less than ten acres); 4) subdivide and sell up to nine lots, 10 V.S.A. § 6001(19); see 10 V.S.A. § 6081 (1984). Finally, Southview can make considerable recreational use of the land. For example, its owners can walk, camp, cross-country ski, snow-mobile, observe wildlife, and even hunt deer on this land. What Southview cannot do, of course, is build the exact residential subdivision for which it sought an Act 250 permit. But neither the Board’s rejection of the permit in question nor the alleged designation of the deeryard on its land preclude development of a modified vacation home subdivision subject to Act 250 review. The Board’s decision shows that its concern centers on the 44-acre area forested with critical softwood cover. The Board’s decision also indicates that it would be receptive to a subdivision proposal that situated the lots away from the critical softwood cover area, or one that reduced the magnitude of the development generally. Eighty-eight acres is a considerable amount of land for the construction of a thirty-three vacation home subdivision, especially one designed like the Southview plan. As we explained, Southview’s project contemplated clustering the 33 units into 12 acres, and directly developing only a total of 23 acres. Both Southview’s allegations and the Board’s findings indicate that Southview could situate a subdivision on its property — similar to the one described in its Act 250 permit application — without directly destroying any of, and minimizing the secondary impact on, the critical 44-acre cover area. Indeed, Southview’s original plan left a large portion of the land undeveloped anyway. The Board’s decision appears to reflect a favorable disposition towards such a modified proposal. Furthermore, to the extent Southview’s reasonable investment-backed expectations have been affected by the Board’s actions, Southview could not have reasonably expected that its plans would have been permitted to proceed willy-nilly. Rigorous Act 250 review seems the norm, not the exception. The fact that Southview must now modify the configuration of its subdivision proposal if it wishes to obtain Act 250 approval does not, in my view, unduly interfere with its reasonable investment-backed expectations. Southview’s ability to develop its land has indeed been limited. Perhaps the subdivision proposal rejected by the Board was the most profitable configuration possible. However, based on Southview’s allegations and the undisputed findings of the Board, I believe that Southview cannot establish that it has been deprived of economically viable use of its land. See Agins, 447 U.S. at 260, 100 S.Ct. at 2141. 2) Substantial Advancement of a Legitimate State Interest The inquiry would next focus on whether the Board’s actions “substantially advance[] legitimate state interests.” Nollan, 483 U.S. at 834, 107 S.Ct. at 3147 (quoting Agins, 447 U.S. at 260, 100 S.Ct. at 2141); see Keystone, 480 U.S. at 485, 107 S.Ct. at 1242. The Court has developed no litmus test for identifying a “legitimate” state interest. Nollan, 483 U.S. at 834, 107 S.Ct. at 1242. Instead, as the Nollan Court explained, a wide array of government purposes are deemed “legitimate,” including, for example, landmark preservation, scenic zoning, and residential zoning. Id. at 834-35, 107 S.Ct. at 3147. (citing Penn Central, 438 U.S. at 127, 98 S.Ct. at 2660; Agins, 447 U.S. at 260-62, 100 S.Ct. at 2141-42; and Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926)). To meet the requirement that the regulation “substantially advance” the state interest, there must be a nexus between the prohibition mandated by the regulation and the goal advanced by the state as the justification for the prohibition. Nollan, 483 U.S. at 837, 107 S.Ct. at 3148. Here, on a general level, the Vermont Legislature found that regulation was necessary to control uses of the land that did not serve the needs of the people of Vermont. Findings and declaration of intent, 1969, No. 250 (Adj. Sess.), § 1, in 10 V.S.A. annotations following § 6001 (1984). Accordingly, the legislature sought to permit land uses that were not unduly destructive to the environment and that promoted the general welfare. Id. On a more specific level, the legislature subsequently stated that “conservation of the recreational opportunity afforded by the state’s ... forests ... are matters of public good. Uses which threaten or significantly inhibit these resources should be permitted only when the public interest is clearly benefited thereby.” 1973 Capability and development plan; statement of intent and findings, 1973 No. 85, § 7, in 10 V.S.A. annotations following § 6042 (1984). The legislature also determined that “[t]he use and development of land and waters should occur in such a way as not to significantly diminish the value and availability of outdoor recreational activities to the people of Vermont, including hunting.” Id. Indeed, the government of Vermont has long valued and protected hunting. Since the adoption of the Vermont Constitution by the Republic of Vermont in 1777, Vermonters have had a constitutional right to hunt. Vt. Const, ch. II, § 67. And the tens of thousands of people who hunt in Vermont, both Vermonters and visitors from other states, would likely identify white-tailed deer as the most prized big game animal in the State. In order to preserve the deer herd for future generations, the State has enacted laws and promulgated regulations regarding hunting of white-tailed deer. See, e.g., 10 V.S.A. § 4741 et seq. (1984 & Supp.1991) (specifying, among other things, when, how, and what type of deer may be hunted); see generally Vermont Department of Fish and Wildlife, Deer Management Plan for the State of Vermont, 1990-95 2-6 (June 1990). Preservation of a healthy white-tailed deer herd, through habitat protection and hunting regulation, serves more than just the interests of hunters. Hunting is important to the economic health of the state, bringing in visitors whose spending boosts local businesses and yields tax revenues. The fees charged for hunting licenses— between $12 (resident) and $75 (nonresident), Vermont Fish and Wildlife Department, Vermont Digest of Fish and Wildlife Laws 13 (1992) — add to the state’s revenues as well. Preservation of the white-tailed deer also enables people to observe the deer, and as the Board found, “provides the more intangible benefit of knowing that the deer exist.” Put simply, white-tailed deer are part of Vermont’s heritage. I believe that the government’s goal of protecting deer and their habitat under Criterion 8(A) of Act 250 is for the benefit of the public and undeniably represents a legitimate state interest. See Agins, 447 U.S. at 261, 100 S.Ct. at 2142; Keystone, 480 U.S. at 487, 492, 107 S.Ct. at 1242, 1245. I also believe that a sufficient nexus exists between the Board’s actions — denial of Southview’s application and alleged permanent designation of Southview’s property as within a deeryard — and the state’s goal of protecting deer and their habitat. Southview agrees that the deeryard is on its property. Southview does not dispute the Board’s findings that (1) destruction of deeryard has occurred in the Stratton area; (2) the Southview property is within the last deeryard in a 10.7 square mile area; (3) the Southview project, as proposed, would destroy 10 acres and imperil 34 acres of the best habitat remaining in the deeryard; (4) the development, as proposed, would likely cause the 20 deer that use the habitat to abandon it and reduce their ability to survive in wintertime; and (5) the “cumulative effect of development in the state is a threat to the entire deer herd.” Southview argues that the deer are neither an endangered nor threatened species in Vermont. Historical experience teaches, however, that today’s plentiful species may become tomorrow’s endangered or even extinct species — witness the fates suffered by the American Bison and the Passenger Pigeon. It is my view that the white-tailed deer population in Vermont need not deteriorate to such a level before the protection of their winter habitat — especially in an area where little such habitat remains — can be said to “substantially advance” Vermont’s interest in preserving a healthy and populous deer herd. In fact, it is difficult to imagine a decision rooted in sound game-management principles that would fail substantially to advance legitimate, state interests. See generally Christy v. Hodel, 857 F.2d 1324, 1330-31 (9th Cir.1988) (Federal regulations regarding the killing of grizzly bears rationally advance a legitimate government objective.), cert. denied, 490 U.S. 1114, 109 S.Ct. 3176, 104 L.Ed.2d 1038 (1989). Thus, it is my view that under the circumstances of this case, Southview cannot prove that the Board’s actions fail to “substantially advance legitimate state interests.” I conclude that Southview may suffer some economic loss because it can no longer put its property to the precise use for which it sought an Act 250 permit, but that in no way does this potential loss effect a compensable taking. The restrictions imposed on Southview by the Act 250 process redound to the benefit of the public, both Vermonters and non-residents alike. These limits apply to all who seek to place a development — large enough to invoke Act 250 jurisdiction— within the State of Vermont. That all such landowners are subject to these limits enhances the fairness of the statute’s permit review process. Moreover, the widespread applicability of the restrictions preserves the natural, unspoiled qualities of Vermont — including the presence of the deer. It is qualities like these that render Vermont an economically viable place for Southview to situate a vacation home development. Like any property owner, South-view can exploit these qualities for profit; but it cannot avoid its responsibility to refrain from destroying them in the process. Having stated these views on the merits of the substantive due process and regulatory taking claims as my own, I nevertheless unqualifiedly join my colleagues in believing that affirmance of the dismissal of these claims for lack of ripeness as above stated is required. Judgment affirmed. . There is no suggestion, however, that the Board is estopped from denying the Act 250 permit by virtue of Fish and Wildlife’s apparent error. Cf. Schweiker v. Hansen, 450 U.S. 785, 788-90, 101 S.Ct. 1468, 1470-72, 67 L.Ed.2d 685 (1981) (holding that federal government employee’s error did not justify estopping federal government from applying valid regulation). . The availability of winter habitat has long limited the abundance and physical condition of deer in Vermont. Indeed, in the mid-1800s, when only about 30% of Vermont’s land area was covered with forests, the deer population in Southern and Central Vermont was so decimated that a deer sighting could merit a newspaper story. Despite the existence of a constitutional right to hunt, fowl and fish, see Vt.Const. ch. II, § 67, deer hunting was barred from 1865 to 1896. This regulation, in conjunction with the reforestation of abandoned farmland, enabled the deer population to recover. Vermont Department of Fish and Wildlife, Deer Management Plan for the State of Vermont, 1990-95 2-3 (June 1990). . Essentially, a regulatory taking — also known as inverse condemnation — occurs when the purpose of government regulation and its economic effect on the property owner render the regulation substantively equivalent to an eminent domain proceeding and, therefore, require the government to pay compensation to the property owner. See Yee,-U.S. at-, 112 S.Ct. at 1526; Agins v. City of Tiburon, 447 U.S. 255, 258, 100 S.Ct. 2138, 2140, 65 L.Ed.2d 106 (1980). . This may seem inconsistent with the rest of the Act, especially where deeryards are involved. But courts cannot expect legislatures to be omniscient or not subject to compromise. . And, unlike the physical occupation at issue in Loretto, deemed especially offensive because the occupier was a “stranger,” Loretto, 458 U.S. at 435, 102 S.Ct. at 3176, here the deer are not strangers to their winter habitat — the deeryard. . Although Southview maintains that Nollan v. California Coastal Comm'n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), provides critical support for its physical taking claim, Nollan is largely irrelevant to this claim because it involved a regulatory taking, rather than a physical taking. See id. at 834, 838-42, 107 S.Ct. at 3147, 3149-51; see also Yee,-U.S. at-, 112 S.Ct. at 1529-31. The Nollan Court did state in dictum that, had California required the property owners to grant the public an easement across their beachfront property, such government action would have constituted a physical taking. Nollan, 483 U.S. at 831-32, 107 S.Ct. at 3145-46. Yet even this dictum is wholly inapplicable to Southview’s physical taking- claim because, as discussed above, the Board has not required Southview to submit to a physical invasion by the deer. . We digress to make a point relevant to the merits of Southview’s substantive due process claim. Under the facts of this case, we discern no difference between the test for a determination of the validity of Southview's regulatory taking claim, and that for Southview’s substantive due process claim under the theory that the Board has gone "too far.” By its terms, a due process violation under this theory — a theory the Supreme Coiirt flirted with, but did not approve, in Williamson — can only occur if the regulation has the same effect as a taking by eminent domain. Accordingly, we view this test as co-extensive with the inquiry we face under a claim for a regulatory taking. See also Stoebuck, supra, at 1098. . Although a taking claim will not be ripe without a final decision, "[a] property owner is of course not required to resort to piecemeal litigation or otherwise unfair procedures in order to obtain this determination.” MacDonald, 477 U.S. at 350 n. 7, 106 S.Ct. at 2567 n. 7 (citing Williamson, 473, U.S. at 205-06, 105 S.Ct. at 3126-27 (Stevens, J. concurring)). . We previously have applied the Roth test to substantive due process claims arising from government land use decisions such as a local authority’s denial of a building or zoning permit. I see no relevant distinction, however, between local zoning and building regulations and the state-wide land use scheme embodied in Act 250. Both may diminish the value of property by barring a potential use, but the loss of value is likely offset in part "by an increase in value which flows from similar restrictions as to use on neighboring properties.” Penn Central Transp. Co. v. New York City, 438 U.S. 104, 139-40, 98 S.Ct. 2646, 2667, 57 L.Ed.2d 631 (1978) (Rehnquist, J. dissenting). Act 250, as with zoning regulations within a municipality, applies to all property owners within the State of Vermont, "not only for the benefit of [the state] as a whole but also for the common benefit of one another," yielding "an average reciprocity of advantage.” Id. at 140, 98 S.Ct. at 2667 (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922)). This rationale would seem especially compelling in the context of a mountain-area vacation home development, where the uses to which other landowners put their property, and the resultant quality of the surrounding environment, is quite relevant to the market value of the lots. Accordingly, I would find the Roth test applicable to Act 250 permit determinations. . On appeal, Southview has advanced no claim of error with respect to the district court’s dismissal of its equal protection claim. . Pennsylvania common law, at the time, recognized three distinct estates in mining property: the surface, the right of support, and the right to mine below the surface. See Carol M. Rose, Mahon Reconstructed: Why the Takings Issue is Still a Muddle, 57 S.Cal.L.Rev. 561, 563-64 (1984). . Moreover, many believe Mahon was substantially overruled in Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987). In Keystone, the Court rejected a facial attack, under the Takings Clause, on the Subsistence Act, a Pennsylvania mining statute. Id. at 501-02, 107 S.Ct. at 1250-51. The Subsistence Act, however, interfered with the property interests of mining companies in a manner "strikingly similar” to the Kohler Act — the act at issue in Mahon. Keystone, 480 U.S. at 506-07, 107 S.Ct. at 1253 (Rehnquist, J., dissenting). However, Mahon was heavily relied upon by the majority in Lucas. And the Keystone majority, as well as Mr. Justice Stevens, dissenting in Lucas, distinguished Mahon from Keystone on the basis that "the regulatory function of the [Subsistence Act]” was substantially broader." Id. -U.S.-, 112 S.Ct. at 2923 (Stevens, J„ dissenting). As Mr. Justice Stevens explained: “Unlike the Kohler Act, which simply transferred back to the surface owners certain rights that they had earlier sold to the coal companies, the Subsistence Act affected all surface owners — including the coal companies — equally." Id. (citing Keystone, 480 U.S. at 486, 107 S.Ct. at 1242). . The economic effect of a taking has also been characterized as “undue interference with ... investment-backed expectations." Keystone, 480 U.S. at 485, 107 S.Ct. at 1242. . In its Act 250 application, however, certified as true and accurate by its general partner, it indicated a construction cost of $250,000 for a 32 lot residential development. . With respect to the meaning of “involving,” section 6001(3) explains: “In computing the amount of land involved, land shall be included which is incident to the use such as lawns, parking areas, roadways, leaching fields and accessory buildings.” 10 V.S.A. § 6001(3) (Supp.1991). . In Conservation Society of Southern Vermont, Inc. v. Volpe, 343 F.Supp. 761, 767 n. 1 (1972), aff’d, 508 F.2d 927 (2d Cir.1974), vacated, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975), the court quoted the following: Green Mountain Mary, Green Mountain Mary, What does your garden grow? Violets, moss, ground pine, goldenrod, briars, Strawberries, hardhack, wintergreen, ferns, And a little bit of grass, alas. Will you sell me your meadow? Oh, no. Who crops it? Deer. See here, Green Mountain Mary, you people are very,— Excuse me— Queer. G. Taggard, "The Nursery Rhyme and the Summer Visitor," A Part of Vermont (1945), quoted in Time in New England 231 (1950).

Mt. Graham Red Squirrel v. Madigan

ORDER The opinion filed December 11, 1991, is withdrawn. OPINION REINHARDT, Circuit Judge: This is a case about difficult choices. In 1988, Congress was asked to choose between ensuring that our nation remains a world leader in astrophysical research or protecting from almost certain demise an endangered species on the brink of extinction. Congress attempted a compromise by passing the Arizona-Idaho Conservation Act, Title VI, Mount Graham International Observatory, Pub.L. No. 100-696, 102 Stat. 4571, 4597 (1988). Unfortunately, it did not make its choice as clear as it might, or, perhaps, should have. Inevitably, passage of the Act did not end the conflict between those who would build bigger and better telescopes and those who would shelter the endangered Mount Graham red squirrel from the destruction of its habitat. That ongoing struggle has led directly to the controversy that confronts us today. The courts are now required to make Congress’s difficult choice clear. I. FACTS At the center of the controversy is an area of land located on Mount Graham, which is part of the Pinaleno Mountains in the Coronado National Forest in southeastern Arizona. Among Mount Graham’s promontories are High Peak and Emerald Peak. Elevations on Mount Graham exceed 10,000 feet. The mountain, which is surrounded by desert, is far from the lights, noise, and activity of any major population center. It is not, however, untouched by humans. For many years, Mount Graham has been the site of logging, camping, and other human activities. It currently houses a Bible Camp and many summer homes. Mount Graham’s high altitude and relative isolation have provided a unique biological environment, inhabited by plant and animal species found nowhere else in the world. Among those species is the endangered Mt. Graham red squirrel. The red squirrel, which was once thought to be extinct, has a population most recently estimated at 250-300. It is dependent for its survival on the continued existence of old-growth spruce and fir forest habitat, of which very little remains. The red squirrel is now “particularly vulnerable to any disturbance that might bring about further declines in its already precariously low numbers and weakening of genetic viability.” Determination of Endangered Status for the Mount Graham Red Squirrel, 52 Fed.Reg. 20,994, 20,998 (1987). According to the Sierra Club, if the red squirrel becomes extinct it will be the first mammalian extinction in the United States since the passage of the Endangered Species Act of 1973, Pub.L. No. 93-205, 87 Stat. 884 (codified as amended at 16 U.S.C. §§ 1531-1544). The high altitude and isolation of Mount Graham, in addition to providing the unique environment necessary to sustain the red squirrel, make astrophysicists consider that location the best available site in the United States for astronomical research. In 1984, an international consortium led by the University of Arizona (“University”) and including the Vatican Observatory, the Max Planck Institute of Radioastronomy of West Germany, Ohio State University, and Arcetri Astrophysical Observatory of Florence, Italy, proposed the construction of the most sophisticated array of telescopes ever assembled, including the world’s largest, on Mount Graham. The astrophysical complex, as originally proposed, would include thirteen telescopes, support facilities, and an access road. It would be built in the red squirrel’s last remaining undisturbed habitat. Members of the international consortium have indicated that if the astrophysical complex is not built on Mount Graham, it will be built in another country. In response to the international consortium’s proposal and pursuant to the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370c, in 1985 the Forest Service began to prepare an Environmental Impact Statement regarding the effect of constructing the proposed astrophysical complex on Mount Graham. The draft Environmental Impact Statement that the agency released the following year identified a “preferred alternative” in which only five telescopes would be constructed, and in which the complex would be located on High Peak. In 1987, the Forest Service completed a Biological Assessment of its preferred alternative pursuant to section 7 of the Endangered Species Act, 16 U.S.C. § 1536. Meanwhile, the Fish and Wildlife Service listed the Mount Graham red squirrel as endangered. 52 Fed.Reg. 20,994 (1987). Pursuant to section 7 of the Endangered Species Act, the Forest Service initiated “formal consultation” with the Fish and Wildlife Service regarding whether and under what circumstances an astrophysical complex should be permitted on Mount Graham in light of the endangered status of the red squirrel. The Fish and Wildlife Service tentatively concluded that it would agree to development on High Peak, but not to any development on Emerald Peak. Before it could finalize these conclusions, however, the University of Arizona notified the Forest Service that the High Peak alternative did “not provide for or allow a viable cost-effective research facility.” The Forest Service suspended formal consultation and requested that the University present its own proposal for a “minimum viable observatory.” In late 1987, the University proposed the construction of three telescopes on High Peak and four telescopes on Emerald Peak, along with support facilities and access roads. The Forest Service prepared a new Biological Assessment, based on the University’s proposal, and reinitiated formal consultation with the Fish and Wildlife Service. The Fish and Wildlife Service then issued a Biological Opinion in 1988. The Biological Opinion stated that “The long term survival and recovery of the red squirrel depends upon increasing the quality and quantity of habitat, and concurrently eliminating or reducing man-caused mortality and interference with red squirrel reproduction. Elimination of the fragmentation within existing habitat and restoration of other contiguous potential habitat areas will be especially important.” The Biological Opinion further found that “establishment of the seven telescope Mt. Graham Observatory on Emerald and High Peaks is likely to jeopardize the continued existence of the endangered Mt. Graham red squirrel because this plan significantly increases the existing jeopardy status of this squirrel.” Nevertheless, the Biological Opinion contained three “reasonable and prudent alternatives,” two of which provided for the construction of an astrophysical complex on Mount Graham. Surprisingly, one of the two alternatives, Reasonable and Prudent Alternative Three, provided for construction on Emerald Peak, contrary to the Fish and Wildlife Service’s earlier conclusion that development on Emerald Peak would be environmentally unsound. Had Congress not become involved, the next step would have been for the Forest Service to select one of the three alternatives as its preferred proposal. See 50 C.F.R. § 402.15. Frustrated by the delay, the University sought to circumvent the ordinary procedure through congressional action. In 1988, the University lobbied Congress to pass legislation authorizing the immediate construction of an astrophysical complex on Mount Graham. The University’s draft legislation provided: “Notwithstanding any other act, law, rule, or regulation, the Secretary of Agriculture is hereby authorized and directed to enter into a land use agreement with the ... University of Arizona for the establishment of the Mt. Graham International Observatory Research Site.” Although Congress rejected the University's broad language, it did enact legislation providing for the establishment of an astrophysical complex on Mount Graham. In the Arizona-Idaho Conservation Act, Congress essentially assumed the role the Forest Service would ordinarily have played and made a selection among the three “reasonable and prudent” alternatives, choosing Alternative Three — the one that permitted construction on Emerald Peak, the most vital portion of the red squirrel’s habitat. In addition, in order to expedite the process, Congress decided to limit drastically the applicability of certain statutory environmental procedures to the project. The Arizona-Idaho Conservation Act splits the construction of the astrophysical complex into two phases. It first states that “Subject to the terms and conditions of Reasonable and Prudent Alternative Three of the Biological Opinion, the requirements of section 7 of the Endangered Species Act shall be deemed satisfied as to the issuance of a Special Use Authorization for the first three telescopes and the Secretary shall immediately approve the construction of ... (1) three telescopes to be located on Emerald Peak; (2) necessary support facilities; and (3) an access road to the Site.” Arizona-Idaho Conservation Act, sec. 602(a). The Act further provides that “[t]he Secretary shall, subject to the requirements of the Endangered Species Act and other applicable law, authorize the construction of four additional telescopes on Emerald Peak. Consultation under section 7(a)(2) of the Endangered Species Act with respect to the four additional telescopes ... shall consider, among other things, all biological data obtained from monitoring the impact of construction of the first three telescopes upon the Mount Graham red squirrel.” Id. sec. 603. The Act requires that the University, with the concurrence of the Secretary of Agriculture, develop and implement a Management Plan “consistent with the requirements of the Endangered Species Act and with the terms and conditions of Reasonable and Prudent Alternative Three of the Biological Opinion, for the Site.” Id. sec. 604(a). Finally, the Act modifies the provisions of Reasonable and Prudent Alternative Three in that it delays the closure of the summer homes and Bible Camp currently located on Mount Graham. Id. sec. 605. In April 1989, the Secretary of Agriculture issued the University a permit for the first phase of construction of the astrophysical complex. The permit allows construction of the first three telescopes on Emerald Peak. Construction will take place on a total of 8.6 acres of the 1,750 acres designated in the Biological Opinion as a Refugi-um for the red squirrel. The permit is conditioned on compliance with the Management Plan required by the Arizona-Idaho Conservation Act and the terms and conditions of Reasonable and Prudent Alternative Three. Construction of the access road has now been completed and most if not all of the acres allotted to the first phase of the project have already been cleared or transplanted. The Sierra Club and a coalition of environmental organizations (“Sierra Club”) seek an immediate halt to all construction relating to the first phase of the project— the first three telescopes — alleging violations of the Endangered Species Act, the National Forest Management Act, and the terms and conditions of the Arizona-Idaho Conservation Act. Their allegations primarily center on the existence of factual circumstances requiring that the Forest Service and the Fish and Wildlife Service reinitiate formal consultation; they also allege monitoring and road closure violations, a violation by the Fish and Wildlife Service regarding failure to designate critical habitat, and a violation by the Forest Service regarding failure to maintain sufficient habitat for a viable population of red squirrels. The most significant dispute between the parties is whether the Endangered Species Act requires further consultation between the Forest Service and the Fish and Wildlife Service before construction on the first phase of the project may proceed. The plaintiffs’ complaint seeks both declaratory and injunctive relief. On appeal, we address not only the plaintiffs’ allegations, but also the district court’s denial of a motion by Mountain States Legal Foundation and a coalition of business interests to intervene. Ultimately, we conclude, with respect to the principal issue, that no further consultation is required prior to the construction of the first three telescopes. However, as we have already noted, when Congress chose the governing statutory language it failed to make that decision clear. Moreover, the process by which Congress reached its decision was less than satisfactory. No committee hearings were held and no committee reports issued. Following passage of the Act, individual members of Congress sought reconsideration. However, they were all unsuccessful. We are therefore required to make the best sense we can of the legislation as originally enacted, regardless of any questions we may have as to its wisdom. It is in that light that we proceed to resolve this part of the appeal — and do so in favor of the defendants. With respect to the other issues raised by the plaintiffs, we also conclude that the defendants must prevail. II. PROCEDURAL HISTORY On July 26, 1989, Sierra Club filed a complaint in the United States District Court for the District of Arizona against the Secretary of Agriculture, the U.S. Forest Service, the Secretary of the Interior, and the U.S. Fish and Wildlife Service. The complaint stated nine claims for relief, resting on alleged violations of the Endangered Species Act, the National Forest Management Act, and the Arizona-Idaho Conservation Act. The history of this case involves numerous proceedings in the district court as well as multiple appeals. We describe the nature and history of each appeal separately. A.The “Road Appeal” On August 22, 1989, Sierra Club moved for a preliminary injunction barring construction of the astrophysical complex. The district court scheduled a hearing on the motion for September 8, 1989. On August 30, however, while presiding over a hearing on the University’s motions to intervene as a defendant and to dismiss the complaint with prejudice, the district court announced its decision not to hold the preliminary injunction hearing until after the access road was substantially completed. When Sierra Club noted that its only option was an appeal, the district court stated, “You really break my heart.” Sierra Club then appealed. A motions panel of this court denied Sierra Club’s motion to enjoin construction of the access road pending appeal. The road was constructed pri- or to the time we heard oral argument. B. The “Summary Judgment Appeal” On June 4, 1990, the district court granted summary judgment to the defendants on seven of Sierra Club’s nine claims. Among the claims rejected in this order was the claim that, pursuant to section 7 of the Endangered Species Act, further consultation prior to construction of the first phase of the project was required. The order also rejected the claim that the Forest Service had violated the National Forest Management Act by failing to maintain a minimum viable population of red squirrels, the claim that the Fish and Wildlife Service had violated section 4 of the Endangered Species Act by failing to designate critical habitat in a timely manner, and the claims that the Forest Service had violated section 9 of the Endangered Species Act by “taking” the Mount Graham red squirrel. The district court certified its order of partial summary judgment for immediate appeal pursuant to Fed.R.Civ.P. 54(b). C. The “Jurisdictional Appeal” In June 1990, at the request of Senators McCain and DeConcini of Arizona, the General Accounting Office investigated the question whether the Biological Opinion was biologically unsound. It concluded that Reasonable and Prudent Alternative Three was unsupported by biological studies, that the Fish and Wildlife Service regional director who mandated the inclusion of that alternative in the Biological Opinion had based his decision partly on nonbiological considerations, and that recent evidence indicated that the status of the red squirrel had worsened since the issuance of the Biological Opinion. The General Accounting Office presented those conclusions at a congressional joint oversight hearing. Three days later, three members of the Arizona congressional delegation requested that the Fish and Wildlife Service prepare a “Biological Update” of the Biological Opinion. The Biological Update, which was released on August 6, recommended the reinitiation of consultation pursuant to section 7 of the Endangered Species Act. Relying on the Biological Update, Sierra Club moved to enjoin construction pursuant to claims 5 and 9 — the only claims on which the district court had not granted summary judgment. The district court denied the motion, stating that it lacked jurisdiction over the motion because Sierra Club’s re-consultation claims were already on appeal (the “Summary Judgment Appeal”). The court stated in addition that it would deny a motion for an injunction pending appeal. A motions panel of this court granted a stay pending appeal but later reversed itself and vacated the stay order. Following oral argument, we issued an order of limited remand to the district court directing it to consider one of the issues raised in the “Jurisdictional Appeal”: whether it should temporarily enjoin construction based on Sierra Club’s allegation that the monitoring program, which was intended to measure the impact of construction on the red squirrel, was being conducted in violation of the Arizona-Idaho Conservation Act. See Mount Graham Red Squirrel v. Yeutter, 930 F.2d 703 (9th Cir.1991). Our limited remand regarding the monitoring program did not dispose of the “Jurisdictional Appeal” in full. In this opinion, we address the remaining issues. D. The “Intervention Appeal” On October 26, 1989, Mountain States Legal Foundation (“Mountain States”) moved to intervene as a defendant. The district court denied the motion on November 20, 1989. On January 2, 1990, Mountain States moved for reconsideration. The district court denied that motion on January 16. On March 2, Mountain States appealed from both the order denying intervention and the order refusing to reconsider the petition for intervention. Although Mountain States initially sought permissive intervention as well as intervention of right, only the intervention of right claim is raised on appeal. III. THE MERITS OF THE VARIOUS APPEALS A. The “Road Appeal” By delaying a hearing on Sierra Club’s motion to enjoin construction of the astrophysical complex until after the access road had been substantially completed, the district court effectively denied the motion to the extent that it related to construction of that road. See 11 C. Wright & A. Miller, Federal Practice and Procedure § 2962, at 614 (1973) (“when a court declines to make a formal ruling on a motion for a preliminary injunction, but its action has the effect of denying the requested relief, its refusal to issue a specific order will be treated as equivalent to the denial of a preliminary injunction and will be appeal-able”); see also Cedar Coal Co. v. United Mine Workers, 560 F.2d 1153, 1161-62 (4th Cir.1977) (“the indefinite continuance amounted to the refusing of an injunction and is appealable”), cert. denied, 434 U.S. 1047, 98 S.Ct. 893, 54 L.Ed.2d 798 (1978). At the time the “Road Appeal” was filed, therefore, we clearly had jurisdiction to review the district court’s decision. Before we had an opportunity to rule on the “Road Appeal,” the district court granted summary judgment to the defendants on seven of Sierra Club’s nine claims. The “Road Appeal” raises the same issues that we decide infra in connection with the “Summary Judgment Appeal.” Thus, we are asked to review simultaneously a denial of preliminary injunctive relief and an ultimate decision on the merits. Our disposition of the “Summary Judgment Appeal” affirms the district court’s grant of summary judgment. Given that fact, a reversal of its denial of preliminary injunctive relief would have no practical consequences. Accordingly, we dismiss the “Road Appeal” as moot. Our dismissal does not alleviate our dismay at the district court’s refusal to schedule a hearing on Sierra Club’s motion for a preliminary injunction barring construction of the access road. Construction of the road represented a major portion of the alleged harm to the red squirrel. The only explanation that we find for the district court’s refusal to schedule a half-day hearing is the awkwardness of balancing a hearing in this case with the demands of other cases. That rationale is insufficient. B. The “Summary Judgment Appeal” 1. Reinitiation of Consultation Claims In two of the claims on which summary judgment for the defendants was granted, Sierra Club asserted that, prior to engaging in any construction, the Forest Service was required to reinitiate formal consultation with the Fish and Wildlife Service pursuant to section 7 of the Endangered Species Act. That section requires a “Federal agency”—in this case, the Forest Service—to initiate formal consultation with the Fish and Wildlife Service whenever an action by that agency is likely to affect an endangered species or its critical habitat. 16 U.S.C. § 1536(a)(2). Formal consultation concludes with the issuance of a Biological Opinion by the Fish and Wildlife Service. Id. § 1536(b)(3)(A). See generally Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir.1985). Under section 7, new circumstances may require reinitiation of formal consultation. Regulations promulgated by the Fish and Wildlife Service provide that reinitiation of consultation shall occur in the following circumstances: (a) If the amount or extent of taking specified in the incidental take statement is exceeded; (b) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (c) If the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion; or (d) If a new species is listed or critical habitat designated that may be affected by the identified action. 50 C.F.R. § 402.16. Reinitiation of consultation requires the Fish and Wildlife Service to issue a new Biological Opinion before a project may go forward. Sierra Club argues that under paragraphs (b), (c), and (d) of the regulation, factual circumstances now exist to trigger reinitiation of formal consultation regarding construction of the first phase of the Mount Graham astrophysical complex. Whether such circumstances exist is relevant only if the requirements of section 7 apply. Clearly those requirements would be applicable in the absence of the Arizona-Idaho Conservation Act. The parties disagree, however, over the effect of that statute on the section 7 reconsultation duty. We begin our analysis, as we must, with the language of the statute. See Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). a. Statutory Language Section 602(a) of the Arizona-Idaho Conservation Act reads as follows: Subject to the terms and conditions of Reasonable and Prudent Alternative Three of the Biological Opinion, the requirements of section 7 of the Endangered Species Act shall be deemed satisfied as to the issuance of a Special Use Authorization for the first three telescopes and the Secretary shall immediately approve the construction of the following items: (1) three telescopes to be located on Emerald Peak; (2) necessary support facilities; and (3) an access road to the Site. Three possible constructions exist. First, Sierra Club argues that the language “as to the issuance of a Special Use Authorization” demonstrates that Congress deemed section 7 satisfied for purposes of issuing the special use authorization only. That argument makes no sense either practically or as a matter of linguistics. If Sierra Club were correct, then the project would be subject to the reinitiation of consultation on the day following the issuance of the special use authorization, even before the Secretary could “immediately approve” construction. The interpretation conflicts directly with the statutory requirement that the Secretary authorize immediate construction. Accordingly, we reject Sierra Club’s reading of section 602(a). There is a more reasonable variation of Sierra Club’s argument which, although not raised by Sierra Club, should be considered. Section 602(a) could be read to deem section 7 satisfied as to both the issuance of the special use authorization and the Secretary’s immediate approval of construction; however, if following the issuance of the Secretary’s approval circumstances exist that warrant the reinitiation of consultation, then section 602(a) would not bar such action. Under this interpretation, section 602(a) would serve to expedite the first phase’s pre-construction process by ensuring the issuance of both the special use authorization and the Secretary’s approval, but would not prevent application of the regular environmental procedures during the remainder of that phase. The final possible construction is that of the defendants: they argue that section 602(a) deems section 7 of the Endangered Species Act satisfied as to the entire first phase of the project. Under this interpretation, Congress intended that the first three telescopes be built and that section 7 be deemed complied with in order to achieve that goal. Factual circumstances that would otherwise trigger the reinitiation of consultation would not do so with respect to construction of the first three telescopes; the issue whether the first phase of construction may proceed has, in that view, already been resolved. The basic question to be answered in interpreting section 602(a) is the following: Did Congress intend to waive the requirements of section 7 until after the construction of the first three telescopes was completed, or did it intend only to hasten the project through the stage of the Secretary’s authorization but leave the actual construction process subject to further environmental consultation? The language of section 602(a) does not answer the question clearly. The reference to “the issuance of a special use authorization” renders the scope of the section 7 waiver ambiguous. In order to interpret section 602(a), we must examine the structure and history of the statute as well as its purpose. See Martin v. Occupational Safety & Health Review Comm’n, — U.S. —, 111 S.Ct. 1171, 1176, 113 L.Ed.2d 117 (1991); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51, 107 S.Ct. 1549, 1554, 95 L.Ed.2d 39 (1987) (“[i]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy”) (quoting, inter alia, Kelly v. Robinson, 479 U.S. 36, 43, 107 S.Ct. 353, 357, 93 L.Ed.2d 216 (1986)). b. Statutory Structure Immediately apparent is the different treatment that Congress accorded to the first and second phases of construction. The statute establishes a Mount Graham International Observatory Site to consist of seven telescopes, all on Emerald Peak. Arizona-Idaho Conservation Act, sec. 601(a). The first phase of construction involves the first three telescopes, and the second phase involves the next four. Although Congress explicitly recognized that the second phase must proceed in a manner consistent with all applicable environmental laws, it adopted special waiver provisions in the case of the first phase. While section 603(a) expressly applies the requirements of the Endangered Species Act, in full, to the construction of the second four telescopes, section 602(a) provides for at least a partial waiver of section 7 requirements with respect to the first three. Similarly, while section 607 expressly applies the requirements of section 102(2)(C) of the National Environmental Policy Act, in full, to the second phase of construction, it deems those requirements satisfied as to the first phase of construction. Moreover, approval for the second phase is expressly conditioned on a consideration of “all biological data obtained from monitoring the impact of construction of the first three telescopes upon the Mount Graham red squirrel.” Arizona-Idaho Conservation Act, sec. 603(b). The defendants argue, with some force, that the distinctions between the two phases suggest that Congress reached a compromise in which the first three telescopes would be constructed immediately but the next four would be constructed in strict compliance with all otherwise applicable environmental laws. Sierra Club counters that the broad waiver language of section 607 (involving National Environmental Policy Act requirements), compared with the ambiguous language of section 602(a) (the provision before us) demonstrates that Congress intended a lesser waiver in the latter section than in the former. The argument that Congress knew how to use unambiguous waiver language when it intended a complete waiver, and that it failed to use that language when it waived the provisions of section 7 as to the first phase of the project, is a meritorious one. Nevertheless, it does not, in itself, serve to override the defendants’ contrary arguments. The difference in statutory language is simply a factor we weigh in the balance. Sierra Club also argues that section 601 contemplates the issuance of more than one future Biological Opinion, and that Congress therefore must have foreseen that there might be future Biological Opinions for the first as well as the second phase of construction. This argument has no merit. The plural reference in section 601 can be explained solely by the fact that there will be a second phase of construction. That phase alone may have more than one Biological Opinion. The plural reference does not in any way suggest that additional Biological Opinions may be needed for the first phase. On balance, a reading of the statute as a whole suggests that Congress intended that the first three telescopes be built immediately, without being subject to the possibility of delay inherent in any reinitiation of consultation. The significantly differing treatment accorded the two phases of construction, while not dispositive, points in that direction. However, the statute does not contain a policy statement telling us expressly that regardless of what might subsequently be determined to be the environmental consequences, Congress was committed to having the first three telescopes built without additional safeguards; and the ambiguity of the statute plus Congress’s failure to employ broad waiver language similar to that used in section 607 gives us considerable pause. Accordingly, we are required to proceed further in our effort to ascertain Congress’s intent. We next proceed to examine the legislative history. See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 511, 109 S.Ct. 1981, 1985, 104 L.Ed.2d 557 (1989). c. Legislative History It is naive, or disingenuous, to suggest that courts should not consider legislative history when attempting to determine the meaning of statutes. It is true that in some instances statutes are clear on their face and that no further interpretive assistance is required. In those cases it is proper to look only to the statute’s plain language. In other instances, however, the language of the statute is uncertain or ambiguous, and legislative statements, particularly committee reports, can be extremely helpful in understanding what Congress intended — in determining what the statute means. Admittedly, on some occasions when the statutory language is ambiguous, legislative history will not tell us much. When it doesn’t, we should acknowledge that fact, and utilize whatever other techniques of statutory construction would be most useful. The extent to which legislative history is helpful to our effort to determine a statute’s meaning can best be determined on a case by case basis. Statutory construction is an area in which absolutist rules do not lead to sensible or accurate results. The many and varied canons of statutory construction amply demonstrate this point. Common sense not dogma is what is needed in order to explore the actual meaning of legislative enactments. Whatever the imperfections inherent in the use of legislative history, there is no justification for trashing the concept itself. Ignoring the relevant legislative history in all cases would unquestionably serve to denigrate the role of Congress. We would be doing a disservice to our system of checks and balances were we to abandon so useful and well-established an interpretive device simply because we have become disenchanted with Congress’ performance or because we disagree with the political philosophy that motivates the majority of its members. In the present case, the legislative history regarding the Arizona-Idaho Conservation Act is exceedingly sparse; it is nonetheless critical to the outcome. The legislation was passed quickly; no committee hearings were held. The bill originated in the Senate where it was sponsored by both Arizona Senators. One week after the bill’s passage in the Senate, it was adopted by the House with hardly any discussion. In total, the Congressional Record reports the statements of only three Senators and three Representatives. Both Arizona Senators commented on the bill during Senate deliberations, and two of the five Arizona Representatives did so during consideration in the House. Because this was special legislation relating to a special project in a particular state, because there were no committee reports and instead the legislators from the affected state explained the project and its impact on the floor, and because no legislator spoke in opposition to the bill, we give greater weight than we otherwise might to the statements of the individual legislators who spoke on behalf of the legislation. The statements made on the floor of the Senate and House consistently support the defendants’ interpretation of the Arizona-Idaho Conservation Act. For instance, Senator McCain of Arizona, one of the sponsors and a Republican, first emphasized the fact that the German participants in the international consortium had threatened to withdraw if construction of the observatory was not approved quickly. 134 Cong.Rec. § 15,740 (daily ed. Oct. 13, 1988). He then specifically discussed the question of the immediacy of construction and the role of consultation, stating: Three telescopes will be built immediately. They can no longer be stalled by process, by litigation, or by whim. Four telescopes can be built in the future after a timely conclusion to the [Environmental Impact Statement] and consultation between Fish and Wildlife, Forest Service, and the University of Arizona. Id. at 15,741. Senator DeConcini, the other Senator from Arizona, also a sponsor but a Democrat, explained the differences between the two phases of construction in similar fashion. Like Senator McCain, he stated that the first group of telescopes would be constructed immediately and that consultation would occur with respect to the second group. He said: This legislation injects certainty. It makes clear to the public, the courts, and agencies of government that three telescopes will be built on Mount Graham immediately and the remaining four telescopes will be built after consultation between the parties on the viability of the red squirrel. Id. at 15,740. Similar views regarding the immediacy of construction of the first three telescopes were echoed in the House. Representative Jones of North Carolina observed to his colleagues: Although the Mount Graham observation project envisions the possibility of seven telescopes ultimately being built on the site, S. 2840 now clearly recognizes that the decisions regarding the construction of these telescopes will occur in two completely distinct and separate phases. Arguments have been made that time is of the essence for gaining the necessary clearances for the first phase of the project involving the construction of three telescopes. We are prepared to accept the validity of these arguments for the first three telescopes but are not convinced that a similar claim can be made for the remaining four telescopes. The provisions of S. 2840 reflect this division with regard to compliance with the Endangered Species Act and the National Environmental Policy Act. Thus, while construction of the first three telescopes may proceed as soon as an acceptable management plan has been developed, no final administration can [or] will be made with regard to authorizing the four remaining telescopes until the requirements of the Endangered Species Act and the National Environmental Policy Act [NEPA] have been fully complied with.... 134 Cong.Rec. H10,553 (daily ed. Oct. 20, 1988) (emphasis added). Representative Udall of Arizona noted the necessity of short-circuiting the customary environmental procedures with respect to the first three telescopes, although he referred specifically to the National Environmental Policy Act waiver rather than to the one involving the Endangered Species Act. He said: The proposal that has come to us from the Senate troubles me. To short circuit the process Congress has established by law to separate out the good projects from the bad projects and to make all the projects better ones, is something I do not regard warmly. And that is what this amendment does, by confirming the unfinished environmental impact statement as meeting the requirements of the National Environmental Policy Act insofar as the first three telescopes are [concerned]. Looking down the road, however, I think that we would be arriving at this point sooner or later anyway and the University of Arizona’s argument that an overly protracted administrative process would be tantamount to a decision against putting telescopes on the mountain does have merit. And in the final analysis, Mr. Speaker, I feel that we really have little choice but to accept this provision. I believe that if this package is sent back to the Senate with any real substantive disagreements that it will be a very great risk indeed. There is too much in this legislation that represents too much work on matters of too great importance to many Arizonans to put in such jeopardy. Id. at H10,546. Sierra Club concedes that the floor statements indicate a different congressional intent regarding the two phases of construction. Nevertheless, it argues that the legislative history shows a congressional belief that the statute would leave the requirements of the Endangered Species Act intact as to both phases. In support of its view, Sierra Club cites, out of context, one portion of Representative Jones’s statement: Quite frankly, earlier drafts of this measure could have been misinterpreted as waiving parts of the Endangered Species Act as applied to the Mt. Graham observatory project. Since this was not the true intent of the drafters of S. 2840, additional discussions with the staff of the Merchant Marine and Fisheries Committee resulted in considerable alteration of the Mt. Graham language. These changes were essential for receiving my support of this legislation. Id. at H10,553. When both parts of Representative Jones’s statement are read together, however, it is clear that his comments do not support the proposition urged by Sierra Club. Instead, Representative Jones’s views, like those of his Senate colleagues, show that those speaking on behalf of the bill believed that it represented a practical compromise: the legislation did not waive the provisions of section 7 of the Endangered Species Act with respect to the Mount Graham project — the entire seven telescope venture. Rather, it provided that the first phase of construction (the first three telescopes) should proceed immediately, but that the second phase (the remaining four telescopes) would remain subject to all the normal requirements of the Endangered Species Act. Viewed in this light, Representative Jones’s statements fully support the defendants’ position. Sierra Club next urges us to consider an exchange between Senators Burdick and DeConcini: MR. BURDICK.... First, am I correct that this legislation requires the project in question to comply fully with the requirements of the Endangered Species Act, including the terms and conditions of Reasonable and Prudent Alternative Three in the U.S. Fish and Wildlife Service’s Biological Opinion, date July 14, 1988? MR. DeCONCINI. My colleague from North Dakota is correct — the amendment requires compliance with the terms and conditions of the biological opinion throughout the legislation. 134 Cong.Rec. S15,739 (daily ed. Oct. 13, 1988). That exchange also supports rather than contradicts the defendants’ position. What Senator DeConcini said in answer to Senator Burdick’s question was quite clearly that the terms and conditions of Reasonable and Prudent Alternative Three would fully apply. He did not say that the requirements of the Endangered Species Act would apply to both phases of construction, and, in fact, remained silent on that subject notwithstanding his colleague’s direct question. Viewed as a whole, the legislative history of the Arizona-Idaho Conservation Act, even more than the statutory structure itself, supports the defendants’ view that the requirements of section 7 of the Endangered Species Act are deemed satisfied as to the entire first phase of construction. The legislative history is clear, and it provides our best insight into the purpose of the statute. Congress was asked to enter the battle and render a decision regarding the future of the Mount Graham Observatory at a time when it had become apparent to all concerned that further delay might cause the international coalition behind the project to dissolve. The dilemma that Congress faced did not stem simply from a scientific dispute over the location or number of telescopes, but from a dispute over whether, in view of the endangered species issue, the project should be built at all. Congress was fully aware that delay caused by the need to comply with environmental procedures might threaten the project’s very survival. The legislative history clearly tells us that given the choice between proceeding immediately with the project or taking the risk that it might be lost, Congress opted for immediate construction of the first three telescopes. d. Post-Enactment Legislative Comments The best argument that Sierra Club advances to overcome the conclusion suggested by the contemporaneous legislative history consists of the post-enactment statements of individual legislators. The issuance of the Biological Update by the Fish and Wildlife Service after passage of the Arizona-Idaho Conservation Act prompted all five Representatives from Arizona and one of Arizona’s two Senators to say publicly that they interpreted the Act to permit the reinitiation of consultation regarding the first phase of construction. A joint press release by Representatives Jim Kolbe, Jay Rhodes, Jon Kyi, and Bob Stump, and Senator John McCain, stated: We have always believed that the Arizona-Idaho Conservation Act contemplated the possibility of reinitiation of consultation where new information has been found. Each step in the regulatory process has been followed during the life of this project. We have supported this process and appropriately deferred to the best scientific judgment of the scientists and other agency experts involved. The U.S. Fish and Wildlife Service biological update suggesting reconsultation will be no exception. The judgment of these experts in 1988 was that the Project could proceed without having a significant effect on the continued existence of the red squirrel. We relied upon their opinion then and supported the project; and, accordingly, will defer to it now. News Advisory, Congress of the United States, House of Representatives (Aug. 6, 1990) (emphasis added). Similarly, Representative Udall stated in a press release issued that same day: [T]he supporters of the Endangered Species Act (ESA) never would have cleared the Arizona-Idaho Conservation Act for passage if we believed that it undermined the integrity of ESA or precluded reinitiation of consultation under the set of circumstances contained in today's Fish and Wildlife Service report. Press Release, Rep. Morris K. Udall (Aug. 6, 1990). These statements, while seemingly relevant, cannot, unfortunately, serve as reliable indicators of congressional intent. See Blanchette v. Connecticut Gen. Ins. Corps., 419 U.S. 102, 132, 95 S.Ct. 335, 352, 42 L.Ed.2d 320 (1974) (“[P]ost-passage remarks of legislators, however explicit, cannot serve to change the legislative intent of Congress expressed before the Act’s passage. Such statements ‘represent only the personal views of these legislators, since the statements were [made] after passage of the Act.’ ” (quoting National Woodwork Mfrs. Ass’n v. NLRB, 386 U.S. 612, 639 n. 34, 87 S.Ct. 1250, 1265 n. 34, 18 L.Ed.2d 357 (1967)) (citation omitted)). Not only were the statements made two years after the passage of the Arizona-Idaho Conservation Act, but they also represent an apparent change of position for at least one of the speakers. Compare News Advisory, Congress of the United States, House of Representatives (Aug. 6, 1990) (Senator McCain stating, “We have always believed that the Arizona-Idaho Conservation Act contemplated the possibility of reinitiation of consultation where new information has been found.”) with 134 Cong.Rec. S15,741 (daily ed. Oct. 13, 1988) (Senator McCain stating, “Three telescopes will be built immediately. They can no longer be stalled by process, by litigation, or by whim.”). As the Supreme Court has said, “We are normally hesitant to attach much weight to comments made after the passage of legislation. In view of the contradictory nature of these cited statements, we give them no weight at all.” County of Washington v. Gunther, 452 U.S. 161, 176 n. 16, 101 S.Ct. 2242, 2251 n. 16, 68 L.Ed.2d 751 (1981) (citation omitted); see also Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118 n. 13, 100 S.Ct. 2051, 2061 n. 13, 64 L.Ed.2d 766 (1980); United States v. Clark, 445 U.S. 23, 33 n. 9, 100 S.Ct. 895, 902 n. 9, 63 L.Ed.2d 171 (1980); Brock v. Writers Guild of America, West, Inc., 762 F.2d 1349, 1356 (9th Cir.1985); American Constitutional Party v. Munro, 650 F.2d 184, 188 (9th Cir.1981). That must be the case here, as well. e. Agency Interpretation Both parties urge us to consider the interpretation given to the Arizona-Idaho Conservation Act by its administering agency, although they disagree whether the administering agency is the Forest Service or the Fish and Wildlife Service. We agree with the defendants that the administering agency is the Forest Service, which Congress specifically charged with the administration of the statute. See, e.g., Arizona-Idaho Conservation Act, sec. 605(b)-(d). Nevertheless, we do not find that in this case the Forest Service’s views are entitled to any weight. Prior to the initiation of the present litigation, the Forest Service indicated its belief that the Arizona-Idaho Conservation Act permitted the reinitiation of consultation regarding the first phase of construction. Subsequent to the filing of this lawsuit, the agency’s position changed. Given this fluctuation over the course of two years, we decline to rely on the Forest Service’s “expertise.” See Wilshire Westwood Assocs. v. Atlantic Richfield Corp., 881 F.2d 801, 809 (9th Cir.1989) (courts should consider “the thoroughness of the agency’s consideration, the validity of its reasoning, and the consistency of its position over time”). f. All Things Considered Our analysis of the language, structure, policy, and history of the Arizona-Idaho Conservation Act leads us to conclude that, despite its inartful wording, that statute deems the requirements of section 7 of the Endangered Species Act satisfied as to the entire first phase of construction of the astrophysical complex. Viewed as a whole, the statute clearly differentiates between its treatment of the first three telescopes and the next four telescopes. Construction of the first three is plainly exempted from other important environmental requirements, specifically the National Environmental Policy Act. Although the statute does not waive the provisions of section 7 of the Endangered Species Act for the entire first phase of the project as clearly as it waives the provisions of NEPA, the legislators who spoke on the floor of the Senate and House in support of the legislation made no distinction between the two waivers and uniformly represented to their colleagues prior to the vote not just that the special authorization would be issued or that the Secretary’s approval would be granted, but that construction would occur immediately. Because anything short of such a provision would not have provided the necessary assurance that further environmental delay would not bring the project to a halt, the conclusion that Congress intended to waive the section 7 provisions regarding the first three telescopes fully seems more consistent with the statutory objectives than the alternatives suggested by the opponents of the project. The fact that Congress made authorization of the final four telescopes contingent on an evaluation of the impact on the red squirrel of construction of the first three telescopes also indicates that the legislators sought to achieve a workable and practical compromise between the needs of the scientific community on the one hand and the legitimate concerns of the environmentalists on the other. Our conclusion is strengthened by the fact that were we to interpret the Arizona-Idaho Conservation Act otherwise, and hold that the section 7 waiver applied only through the Secretary’s authorization phase but not afterwards, the result would be to give the statute little practical significance. Congress knew at the time of passage that, under the Fish and Wildlife Service regulations, the factual basis for re-consultation would come into existence almost immediately after the Secretary issued an authorization for construction of the first three telescopes. As one example of that fact, section 4 of the Endangered Species Act requires the Fish and Wildlife Service to designate critical habitat of an endangered species no later than two years after the publication of a notice proposing to list the species as endangered. 16 U.S.C. §§ 1533(b)(6)(A)(ii), (b)(6)(C) (1988). At the time the Arizona-Idaho Conservation Act was passed, the notice proposing to list the red squirrel as endangered had already been issued, as had the Fish and Wildlife Service’s proposed boundaries for the red squirrel’s critical habitat (in an area including Emerald Peak), but critical habitat had not yet been formally designated. Thus, Congress should have been aware that designation of the area involved was imminent. In this connection, Congress also knew that the Fish and Wildlife Service regulations require the reinitiation of formal consultation whenever critical habitat is designated subsequent to the issuance of a Biological Opinion. 50 C.F.R. § 402.16(d). Because the Biological Opinion had already been issued, Congress should have anticipated that as soon as the Fish and Wildlife Service made its formal designation of critical habitat, the regulations would require the reinitiation of formal consultation. Were the statute to be construed as incorporating the section 7 reconsultation requirement, then Congress would have done very little to overcome the basic problem that it had been asked to solve — that is, to ensure that the environmental obstacles to constructing an astrophysical complex on Mount Graham could be surmounted in a timely manner, without the type of delay that might scuttle the entire project. Before reaching a final conclusion, there is one further possibility we should explore. It could be argued that Congress took a practical approach to the issue of waiver— that it intended to waive the reconsultation requirements as to matters that it was aware of at the time of enactment, but that it did not intend to foreclose consideration of new or unanticipated developments. Under this theory, the designation of critical habitat would not trigger the need to reinitiate consultation because Congress was aware when it passed the Arizona-Idaho Conservation Act that critical habitat designation was imminent. Similarly, neither the congressional modifications to Reasonable and Prudent Alternative Three nor even, possibly, the drop in the population of red squirrels would trigger the need for reconsultation, because Congress knew of the existence of the first at the time it enacted the statute and certainly was aware of the possibility of the second. However, completely new or unanticipated developments, such as the occurrence of a major forest fire on Emerald Peak, might require the halting of construction pending reconsultation and the issuance of a new Biological Opinion. The problem with this approach is that nothing in the language of section 602 (or in the legislative history) suggests that Congress intended to provide for reeonsultation in the case of some of the circumstances set forth in the Fish and Wildlife Service regulations but not in the ease of others, nor that Congress intended to carve out exceptions to the immediate construction requirement in the case of emergencies or unanticipated developments. Congress could, of course, have made either of these choices. But the statutory language shows plainly that it followed a different course, one we are not free to change. There is no ambiguity on this point. Moreover, even were it possible for us to rewrite the statute, it would be extremely difficult to determine what Congress knew at the time of enactment and what constituted a new, unforeseen, or unanticipated development. Environmental issues of this type are rarely black or white, usually complex, frequently difficult to delineate, and often troubling to resolve. The law is confusing enough in this area without our creating additional and unnecessary complications. Reading a “new or unanticipated” exception into the statute would undoubtedly lead to more protracted litigation and the strong possibility of further procedural delays. Accordingly, we decline to interpret the Arizona-Idaho Conservation Act in a way that creates a new ambiguity when a clearer, more precise interpretation exists which is, at the very least, as consistent with the purposes and objectives underlying the Act. See Commissioner v. Brown, 380 U.S. 563, 571, 85 S.Ct. 1162, 1166, 14 L.Ed.2d 75 (1965). Our conclusion that the Arizona-Idaho Conservation Act deems the requirements of section 7 of the Endangered Species Act satisfied with respect to construction of the first three telescopes renders irrelevant Sierra Club’s assertions that a factual basis now exists to invoke reconsultation pursuant to section 7. The district court properly granted summary judgment on Sierra Club’s section 7 reconsultation claims, and we affirm that part of its decision. 2. National Forest Management Act Claim The district court also granted summary judgment to the defendants on Sierra Club’s claim that the Forest Service violated the National Forest Management Act and its implementing regulations by failing to maintain a minimum viable population of red squirrels. The National Forest Management Act requires the Forest Service to promulgate regulations for the development and revision of land management plans that will “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives_” 16 U.S.C. § 1604(g)(3)(B). The regulation promulgated pursuant to that mandate states: Fish and Wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area. For planning purposes, a viable population shall be regarded as one which has the estimated numbers and distribution of reproductive individuals to insure its continued existence is well distributed in the planning area. In order to insure that viable populations will be maintained, habitat must be provided to support, at least, a minimum number of reproductive individuals and that habitat must be well distributed so that those individuals can interact with others in the planning area. 36 C.F.R. § 219.19. According to Sierra Club, the fact that a viable population of red squirrels no longer exists is proof that the Forest Service violated the National Forest Management Act and its implementing regulations. The defendants respond that the Forest Service is not required to maintain a minimum viable population of an endangered species, which is by definition no longer viable. We need not decide which party is correct. The Arizona-Idaho Conservation Act precludes us from granting the relief Sierra Club seeks on the National Forest Management Act claim. We have already decided that Congress, having considered the endangered status of the red squirrel, opted for immediate construction of the first three telescopes. See supra Part III.B.l. Clearly, the fact that there might no longer be a viable population of red squirrels was part of what Congress considered in balancing the competing interests. Sierra Club’s claim that the red squirrel population is no longer viable therefore is not a basis for us to halt construction of the first three telescopes. Accordingly, the district court properly granted summary judgment to the defendants on the National Forest Management Act claim. 3. Critical Habitat Claim The district court granted summary judgment to the defendants on Sierra Club’s claim that the Fish and Wildlife Service violated section 4 of the Endangered Species Act by failing to designate critical habitat in a timely manner. Section 4 requires that critical habitat be designated generally within one year, but in no event longer than two years, after the publication of a notice proposing to list a species as endangered. See 16 U.S.C. § 1533(b)(6)(A)(ii), (b)(6)(C). The Fish and Wildlife Service published a notice proposing to list the red squirrel as endangered on May 21, 1986. See 51 Fed.Reg. 18,630 (1986). By the time that this lawsuit was filed on July 26,1989, the Fish and Wildlife Service had still not made a final designation of critical habitat. That designation was ultimately made on January 5, 1990. See 55 Fed.Reg. 425 (1990). Sierra Club initially sought a judicial order for the Fish and Wildlife Service to declare critical habitat for the red squirrel. Because critical habitat has been declared, the requested relief is moot. Sierra Club now argues that if the critical habitat had been declared in a timely manner, the Fish and Wildlife Service could not legally have issued a Biological Opinion including Reasonable and Prudent Alternative Three. See 50 C.F.R. § 402.02 (prohibiting the issuance of a reasonable and prudent alternative authorizing the “destruction or adverse modification” of critical habitat). That argument is also moot. While it is essential that the Fish and Wildlife Service, like all other government agencies, comply with the law, no purpose would now be served by declaring the Biological Opinion invalid. Regardless of the legality of the Biological Opinion, Congress adopted it and enacted it into law. Whether Congress was acting under a misapprehension of fact or law is irrelevant once legislation has been enacted. See Moor v. County of Alameda, 411 U.S. 693, 709, 93 S.Ct. 1785, 1795, 36 L.Ed.2d 596 (1973). In any event, the relief Sierra Club now seeks is the reinitiation of consultation. We have already held that the first phase of construction is immune from reconsultation requirements. See supra Part III.B.l. Accordingly, we affirm the grant of summary judgment on Sierra Club’s critical habitat claim. C. The “Jurisdictional Appeal” The parties agree that the district court denied Sierra Club’s motion to enjoin construction pursuant to claims 5 and 9 because it believed that the pendency of the “Summary Judgment Appeal” deprived it of jurisdiction over that motion. They have now appealed that decision to us. The parties agree that a ruling by us on the question whether the district judge had the authority to rule on the motion would not advance this litigation, and they urge us to reach the merits of the motion. Because all parties have briefed the merits, we grant that request. 1. Reconsultation Allegations The reconsultation segment of the “Jurisdictional Appeal” is closely related to the reconsultation section of the “Summary Judgment Appeal,” supra Part III.B.l. According to Sierra Club, Reasonable and Prudent Alternative Three of the Biological Opinion, as incorporated into the Arizona-Idaho Conservation Act, includes a provision relating to reconsultation. We disagree. It is Sierra Club’s position that a paragraph governing reconsultation contained in the conclusion of the Biological Opinion is a part of Reasonable and Prudent Alternative Three. The paragraph is textually distinct from that Alternative and cannot reasonably be considered to be a part of it. When Congress adopted Reasonable and Prudent Alternative Three, it did not adopt general introductory or con-clusory remarks set forth in the remainder of the Biological Opinion. 2. Other Allegations Sierra Club also seeks to enjoin construction on the basis of alleged road closure violations and monitoring program violations. We have previously issued an order of limited remand concerning the monitoring allegations. See Mount Graham Red Squirrel v. Yeutter, 930 F.2d 703 (9th Cir.1991). At oral argument, Sierra Club conceded that the road closure allegations would not support the issuance of a preliminary injunction barring construction of the astrophysical complex. Instead, Sierra Club admitted, the road closure violations could only be remedied through an order closing any roads that illegally remain open. However it did not ask the district court for such an order at the time of the hearing on the preliminary injunction. Therefore we cannot consider that relief now. Moreover, the district court did not consider the merits of the claim for preliminary relief resulting from the alleged road closure violations, citing jurisdictional grounds. Correct or incorrect, it is certainly free to reach the merits of that claim now. We remand this part of the “Jurisdictional Appeal” for that purpose. D. The “Intervention Appeal” Mountain States argues that intervention is necessary in order to protect the economic, recreational, and tourism interests of persons who would be affected by road and trail closures on Mount Graham. Its appeal from the denial of intervention was filed more than sixty days after the denial of its motion to intervene, but within sixty days of the denial of its untimely motion for reconsideration. Thus, the threshold issue is whether Mountain States’ untimely motion for reconsideration tolled the sixty day time period in which it was required to appeal from the original order denying the motion to intervene. The answer to that question determines whether we have jurisdiction over the appeal from both orders, or only over the appeal from the denial of the motion for reconsideration. A motion for reconsideration tolls the time in which a party must lodge an appeal if the filing of the motion is timely, but ordinarily does not do so otherwise. See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203, 108 S.Ct. 1717, 1722, 100 L.Ed.2d 178 (1988) (the time limits of Fed.R.App.P. 4 are “mandatory and jurisdictional”); Fiester v. Turner, 783 F.2d 1474, 1475 (9th Cir.1986); Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1419 (9th Cir.1984). Under the “unique circumstances” doctrine, an appellate court may hear a late-filed appeal if the delay was induced by affirmative assurances from the district court that the appeal would be timely. Slimick v. Silva (In re Slimick), 928 F.2d 304, 310 (9th Cir. 1990). However, Mountain States has cited no affirmative representations by the district court that caused it to postpone filing its appeal. Mountain States contends that the district court’s ruling on the merits of its untimely motion for reconsideration within the sixty day appeal period made it reasonable for Mountain States to assume that the appeal time had been tolled, although the district court made no comment with respect to the timeliness of the motion or of any prospective appeal. In so arguing, Mountain States relies on Barry v. Bowen, 825 F.2d 1324, 1329 (9th Cir.1987), and United Artists Corp. v. La Cage Aux Folles, Inc., 771 F.2d 1265, 1267-70 (9th Cir.1985). Subsequent decisions of the Supreme Court and of our court, however, have invalidated the good faith and reasonable reliance standard espoused by these opinions and have limited the unique circumstances test to instances where “a court has affirmatively assured a party that its appeal will be timely.” Slimick, 928 F.2d at 310; see also Osterneck v. Ernst & Whinney, 489 U.S. 169, 179, 109 S.Ct. 987, 993, 103 L.Ed.2d 146 (1989) (unique circumstances exist “only where a party has performed an act which, if properly done, would postpone the deadline for filing his appeal and has received specific assurance by a judicial officer that this act has been properly done” (emphasis added)). In Slimick, we expressly disapproved as inconsistent with Osterneck the holding in Barry, 825 F.2d at 1329, that appellant was entitled to rely on the district court’s consideration of its untimely motion for clarification of the judgment. 928 F.2d at 310 n. 8. The cases that Mountain States relies on, while once valid, are no longer good law. In short, the present rule in this circuit is that “ambiguous or implicitly misleading conduct by courts does not release litigants from their appeal deadlines. If a party believes a court has acted ambiguously as to an appeal deadline, it bears the burden of seeking clarification.” Slimick, 928 F.2d at 310. Under the current state of the law, the district court’s action in ruling on Mountain States’ untimely petition did not serve to extend the time provided for an appeal from the denial of the motion to intervene. While we lack jurisdiction over the merits of the district court’s denial of the motion to intervene, we do have jurisdiction over Mountain States’ appeal from the denial of its motion for reconsideration because the notice of appeal was filed within sixty days of that judgment. To review the denial of the motion for reconsideration we need consider only new information. There is no allegation of mistake, inadvertence, surprise, or excusable neglect. Here, notwithstanding Mountain States’ claims, no new information has been presented. The only new material in the motion to reconsider was a rebuttal to Sierra Club’s opposition to the initial motion, and all the information contained in the rebuttal was known to Mountain States at the time of the initial motion. Thus, the district court did not abuse its discretion in denying the motion for reconsideration. IV. CONCLUSION The possible extinction of an endangered species is not a threat that we take lightly. If the Mount Graham Red Squirrel becomes extinct as a result of the astrophysical research project, then the new telescopes will not represent an unqualified step forward in our quest for greater knowledge. As we expand our horizons by building bigger and better telescopes, we would do well to remember that we also have much to learn from the plant and animal life in the world around us. By contributing to the extinction of an endangered species, we limit our horizons at least as seriously as we do by delaying or even disallowing the construction of new telescopes. In passing the Anzona-Idaho Conservation Act, Congress has balanced the competing interests — albeit through an expedited process that may not have permitted it to consider fully concerns that it otherwise might have addressed. Moreover, the balancing may not have consisted exclusively of weighing one lofty purpose against another, i.e., the advancement of scientific knowledge against species preservation. There is another element that may have been present here as well — the prestige and pride of local institutions and other parochial interests. In that context, the lowly Red Squirrel’s chances for a fair hearing may have been considerably reduced. Whether in other circumstances the result would have been the same, and whether if Congress had considered the question more carefully or fully it would have taken a position on reconsultation that was more protective of the squirrel, we cannot say. The resolution it reached is the one that we are bound to enforce. We can only hope that Congress’s decision will prove to be a wise one. AFFIRMED IN PART; REMANDED IN PART; DISMISSED IN PART AS MOOT. APPENDIX TITLE VI — MOUNT GRAHAM INTERNATIONAL OBSERVATORY Establishment of the Mount Graham International Observatory Site Sec. 601. (a) The Secretary of Agriculture (hereinafter in this title referred to as the “Secretary”) shall issue a Special Use Authorization, subject to the terms and conditions of Reasonable and Prudent Alternative Three of the United States Fish and Wildlife Service Biological Opinion, dated July 14, 1988 (hereinafter referred to as “the Biological Opinion”), to the State of Arizona Board of Regents on behalf of the University of Arizona for the establishment of the Mount Graham International Observatory Research Site (hereinafter referred to as the “Site”), which shall, subject to any subsequent biological opinions issued by the United States Fish and Wildlife Service under the Endangered Species Act, and the provisions of this title, include provision for seven telescopes and necessary support facilities, for the purposes of scientific and astronomical research. (b) The Site referred to in subsection (a) shall include not more than 24 acres within the 150-acre area of the Coronado National Forest, Arizona, as generally depicted on a map entitled, “Mount Graham International Observatory Site,” dated July 28, 1988. Copies of the map shall be available for public inspection in the Office of the Chief, Forest Service, United States Department of Agriculture, Washington, District of Columbia, and the Forest Service office located in Tucson, Arizona. Construction Authorization Sec. 602. (a) Subject to the terms and conditions of Reasonable and Prudent Alternative Three of the Biological Opinion, the requirements of section 7 of the Endangered Species Act shall be deemed satisfied as to the issuance of a Special Use Authorization for the first three telescopes and the Secretary shall immediately approve the construction of the following items: (1) three telescopes to be located on Emerald Peak; (2) necessary support facilities; and (3) an access road to the Site. (b) Until the road described in subsection (a)(3) above is constructed, the Secretary shall allow the University of Arizona to use forest roads FR 507 and FR 669 to the extent permitted in the Biological Opinion. Additional Telescope Construction Authorization Sec. 603. (a) The Secretary shall, subject to the requirements of the Endangered Species Act and other applicable law, authorize the construction of four additional telescopes on Emerald Peak. (b) Consultation under section 7(a)(2) of the Endangered Species Act with respect to construction of the four additional telescopes referred to in subsection (a) shall consider, among other things, all biological data obtained from monitoring the impact of construction of the first three telescopes upon the Mount Graham red squirrel. Authorization by the Secretary for the construction of four additional telescopes shall be consistent with requirements deemed necessary to avoid jeopardizing the continued existence of any species listed under and pursuant to the Endangered Species Act. Management Plan Sec. 604. (a) The University of Arizona, with the concurrence of the Secretary, shall develop and implement a management plan, consistent with the requirements of the Endangered Species Act and with the terms and conditions of Reasonable and Prudent Alternative Three of the Biological Opinion, for the Site. (b) Such management plan shall include provisions for the construction, operation and maintenance of the Site, access to the Site, and related support facilities. (c) The management plan shall be included in any Special Use Authorization issued by the Secretary to the University of Arizona. Existing Special Use Authorizations Sec. 605. (a) Those Special Use Authorizations now in effect for the Columbine Summer Home Tract area and the Arizona Bible School Organization Camp shall continue, subject to the terms and conditions of the authorizations, for the duration of the term specified in each authorization. Prior to the termination, nonrenewal or modification of those Special Use Authorizations for the areas noted above, the Secretary shall, with the assistance of the United States Fish and Wildlife Service, conduct a biological study to determine the effects of such special use authorizations upon the Mount Graham red squirrel and other threatened or endangered species. In making this determination, the Secretary shall consider the small amount of land under special use authorizations. The biological study shall also involve the participation of representatives from the community of Safford, Arizona, all of the affected parties, and any other appropriate interests. In addition to the biological study, the Secretary shall initiate consultation with the United States Fish and Wildlife Service pursuant to section 7(a)(2) of the Endangered Species Act regarding the termination, non-renewal, extension or modification of the special use authorizations. (b) Pursuant to title 2300 of the Forest Service Manual, special use terminations, nonrenewals, or modifications shall not take effect until ten years from the last date of the tenure of existing special use authorizations described in subsection (a). Unless the biological study or the biological opinion issued by the United States Fish and Wildlife Service after consultation under the Endangered Species Act concluded that an earlier date was necessary to avoid jeopardizing the continued existence of the Mount Graham red squirrel or any other threatened or endangered species, such actual terminations, nonrenewals, or modifications shall not take effect before completion of a biological study by the United States Fish and Wildlife Service to begin in the year 2000. This additional study shall be subject to the same requirements and involve the same participants as described in subsection (a). (c) If, after completion of these studies, termination, modification or nonrenewal of special use authorizations described in subsection (a) are prescribed, the United States Forest Service shall, with the cooperation and approval of the holders of these special use authorizations, develop a relocation plan for such individuals and entities. (d) Nothing in this section is intended to preclude the termination of special use authorizations for breach by the permittee of terms and conditions of the authorizations. Financial Responsibilities Sec. 606. In implementing this title, all costs directly associated with construction and site preparation for telescopes, support facilities, a new access road, the biological monitoring program for the Mount Graham red squirrel as contained in the terms and conditions of Reasonable and Prudent Alternative Three of the Biological Opinion, and the retention of an onsite biologist, shall be funded by the University of Arizona. Environmental Impact Statements Sec. 607. With reference to the construction of the first three telescopes, related facilities, and the access road within the boundaries of the Site described in section 601, the requirements of section 102(2)(c) of the National Environmental Policy Act of 1969 shall be deemed to have been satisfied. The Environmental Impact Statement for the Site, currently in process, shall continue and shall use the information developed to date and any additional appropriate information in analyzing the impacts of the four additional telescopes authorized under section 603 of this title. . This figure is based on the October 31, 1990, census. An October census does not reflect the average annual population, as population figures are routinely higher in the fall than in the spring due to spring breeding. Nevertheless, the October 1990 estimate represents an apparent increase in the number of red squirrels over the past few years, although biologists caution that more data is needed in order to determine whether the numbers represent a genuine increase or merely a lull in the overall decline. The recent census data is as follows: Census Date Population Estimate Fall 1990 250-300 Spring 1990 132-146 Fall 1989 162-185 Spring 1989 116-167 Fall 1988 178-226 .The red squirrel relies on old-growth spruce and fir for several reasons. First, the major food source for the red squirrel is seeds from cone crops. The cones on which the red squirrel depends are primarily produced by Engel-mann spruce, Douglas fir, and corkbark fir. Second, the forest canopy that old growth creates provides a cool, moist floor that facilitates food storage. Finally, the large trees are ideal for nesting and are indispensable for travel and escape. . The National Environmental Policy Act requires that a federal agency prepare an Environmental Impact Statement when it recommends "proposals for legislation and other major Federal actions significantly affecting the quality of the human environment_" 42 U.S.C. § 4332(2)(C). The Environmental Impact Statement must cover, among other things, "statements considering alternatives, a full and fair discussion of significant environmental impacts, a discussion on mitigation measures and an evaluation of cumulative impacts.” Sierra Club v. Penfold, 857 F.2d 1307, 1312 (9th Cir.1988) (citing 40 C.F.R. § 1502.1-.25). . A Biological Assessment must be completed "for the purpose of identifying any endangered species or threatened species which is likely to be affected by [an agency] action." 16 U.S.C. § 1536(c)(1). . The Endangered Species Act defines an endangered species as "any species which is in danger of extinction throughout all or a significant portion of its range....” 16 U.S.C. § 1532(6). . The purpose of formal consultation is to "insure that any action authorized, funded, or carried out by [a federal] agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical....” 16 U.S.C. § 1536(a)(2). The requirements for formal consultation are spelled out in 50 C.F.R. § 402.14. The duty to consult is ongoing, and formal consultation must be reinitiated in specified circumstances, including the discovery of "new information reveal[ing] effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered.” 50 C.F.R. § 402.16. . Formal consultation terminates with the issuance of a Biological Opinion. 50 C.F.R. § 402.02. A Biological Opinion "states the opinion of the [Fish and Wildlife] Service as to whether or not the Federal action is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.” Id. . "Reasonable and prudent alternatives" are alternatives to the proposed action that are identified during formal consultation. They consist of alternative actions "that can be implemented in a manner consistent with the intended purpose of the action, that can be implemented consistent with the scope of the Federal agency’s legal authority and jurisdiction, that [are] economically and technologically feasible, and that the Director believes would avoid the likelihood of jeopardizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat.” 50 C.F.R. § 402.02. .Reasonable and Prudent Alternative One would prohibit the construction of an astrophysical complex anywhere in the Pinalenos, and would close and reforest existing roads. The astrophysical complex would be built elsewhere in the world. Reasonable and Prudent Alternative Two would permit the development of 2-3 telescopes at High Peak. It deferred a decision on the development of additional telescopes pending the results of a ten-year study on the effect of construction on-the red squirrel. However, any request before the expiration of ten years to reinitiate formal consultation and make a decision regarding additional development, including development on Emerald Peak, would be accommodated. This alternative would provide for the immediate removal of the Bible Camp and summer homes currently existing on Mount Graham, and for the reforestation of those areas. Various other mitigation measures would also be taken. The alternative would permit an "incidental take” of six red squirrels per year. "Incidental take” means "takings that result from, but are not the purpose of, carrying out an otherwise lawful activity conducted by the Federal agency or applicant.” 50 C.F.R. § 402.-02. The Forest Service would be required to reinitiate consultation with the Fish and Wildlife Service if the incidental take provision was exceeded. Finally, Reasonable and Prudent Alternative Three would permit the development of three telescopes on Emerald Peak. It deferred a decision on the development of additional telescopes pending the results of a ten-year study regarding the effect of construction on the red squirrel. Like Reasonable and Prudent Alternative Two, this alternative would require that any request to reinitiate formal consultation and make a decision regarding further development on Emerald Peak before the expiration of ten years be accommodated. No development would be permitted at any time on High Peak. A new, shorter access road would be constructed and existing roads would be closed and reforested. This alternative would also provide for the immediate removal of the Bible Camp and summer homes currently existing on Mount Graham, and for the reforestation of those areas. Various other mitigation measures would also be taken. The alternative would permit an “incidental take” of six red squirrels per year. The Forest Service would be required to reinitiate consultation with the Fish and Wildlife Service if the incidental take provision was exceeded. . Because the statute is not codified in the United States Code, we attach it as an appendix to the opinion. . The United States General Accounting Office noted that when the effects of clearing on surrounding habitat are taken into consideration, the total area affected will be approximately 45 acres. The General Accounting Office further noted that of the many acres available to and suitable for the red squirrel, only four percent are classified in the Biological Opinion as "excellent” and only thirteen percent are classified as "good.” At the time the Biological Opinion was issued, sixty percent of the red squirrels lived on the "good” and “excellent” acreage. All of the project buildings and over one quarter of the new access road will be built in those prime locations. Since the permit was issued, the area known as a Refugium has been officially designated as critical habitat for the red squirrel. See 55 Fed.Reg. 425 (1990). . Sierra Club noted that even after all the land allotted to the first phase of construction has been cleared, the remaining construction activity will have a negative impact on the red squirrel. As the Biological Opinion found, noise, strange smells, vibrations, and the intrusion of large equipment into the red squirrel’s critical habitat will all affect the red squirrel. The effect will likely be greatest on females with young. The construction activity will occur during the nesting season. . No party has mentioned and, notwithstanding our normal rules, we do not consider, the standing of the first-named party to bring this action. Cf. Sierra Club v. Morton, 405 U.S. 727, 741-52, 92 S.Ct. 1361, 1369-74, 31 L.Ed.2d 636 (1972) (Douglas, J., dissenting). . The district court granted the University’s motion to intervene and took the motion to dismiss under advisement. . The district court explained its grant of summary judgment as resting on a May 15 order by a motions panel of this court. That order stayed an injunction that the district court had issued barring construction of the astrophysical complex for 120 days in order to give Congress an opportunity to "take another look” at the question of authorizing construction. The order stated: "It does not appear from this record that the evidence presented to the district court constituted new information that revealed effects of the proposed telescope project not previously considered by Congress. It appears, therefore, that plaintiffs' claims under the Endangered Species Act and the Arizona Idaho Conservation Act do not raise a serious question. Accordingly, appellant has demonstrated a likelihood of success on the merits of this appeal." .Sierra Club does not raise the section 9 claims on appeal. . The hearing took place before the House Subcommittee on National Parks and Public Lands, of the Committee on Interior and Insular Affairs, and the House Subcommittee on Fisheries and Wildlife Conservation and the Environment, of the Committee on Merchant Marine and Fisheries. . Senators McCain and DeConcini, and Representative Kyi. . The recommendation was premised on the existence of factual circumstances that had developed following the issuance of the Biological Opinion, including recent statistics regarding the red squirrel population, congressional modifications to Reasonable and Prudent Alternative Three, and the designation of critical habitat. . Both claims 5 and 9 involved compliance with the terms and conditions of the Arizona-Idaho Conservation Act. Claim 5 alleged that the Forest Service had violated the provisions of the Arizona-Idaho Conservation Act by failing to implement the terms and conditions of Reasonable and Prudent Alternative Three of the Biological Opinion. Specifically, Sierra Club alleged that the monitoring program was improper, that certain roads required to be closed remained open, and that the Forest Service had failed to reinitiate consultation in violation of the Arizona-Idaho Conservation Act. Claim 9 alleged that the Forest Service’s failure to implement the terms and conditions of Reasonable and Prudent Alternative Three constituted a "taking” of the Mount Graham red squirrel in violation of section 9 of the Endangered Species Act. . Our disposition does not require us to address the University’s argument that the appeal is moot because the access road has now been completely constructed. . According to the University, "construction of the access road represents 64 percent of the 8.6 acre allocation for the first three telescopes, and accounts for 90 percent of the impact, including ‘edge effects.' ” . Sierra Club informed the district court repeatedly that a hearing was required in order for it to present its case effectively, as its arguments would be best explained through the testimony of expert witnesses. Neither the defendants nor the district judge disputed this assertion. .Mountain States Legal Foundation was joined by fourteen other named parties, including local chambers of commerce and other business organizations. . Those circumstances include a decline in the population of the red squirrel; the designation, following the issuance of the Biological Opinion, of the red squirrel’s critical habitat; and the requirement in the Arizona-Idaho Conservation Act that closure of the summer homes and Bible Camp currently located on Mount Graham be delayed, which alters the terms of Reasonable and Prudent Alternative Three of the Biological Opinion. Sierra Club bolsters its argument by pointing to the Biological Update that the Fish and Wildlife Service released in August 1990. That Biological Update, without purporting to analyze the effect of the Arizona-Idaho Conservation Act, states the opinion of the Fish and Wildlife Service that reinitiation of formal consultation is required pursuant to section 7 of the Endangered Species Act. The Biological Update was issued following the district court’s grant of summary judgment, and therefore was not a part of the administrative record before the district court at the time that it ruled. Whether or not we may consider the Biological Update on appeal, the result in this case is the same. Our disposition does not require us to determine whether Sierra Club has established the factual predicate for reinitiation of consultation under otherwise applicable law. . Senators Burdick (D-ND), DeConcini (D-AZ), and McCain (R-AZ); Representatives Udall (DAZ), Rhodes (R-AZ), and Jones (D-NC). . Representative Rhodes of Arizona also commented on the House floor regarding the Arizona-Idaho Conservation Act, but did not address Title VI, which established the Mount Graham International Observatory, in any detail. See id. at H10,546-47. . We reach our conclusion after considering and rejecting Sierra Club's additional argument that the statute incorporates a provision in the Biological Opinion regarding the reinitiation of consultation. See infra Part III.C. . Quoted supra at pages 1450-1451. . The same reasoning applies to the other two factual circumstances which Sierra Club claims trigger the need for reinitiation of consultation. First, Sierra Club argues that congressional modifications to Reasonable and Prudent Alternative Three of the Biological Opinion (i.e., delayed closure of the Bible Camp and summer homes on Mount Graham) trigger the need for reinitiation of consultation pursuant to 50 C.F.R. § 402.16(c). Assuming that Sierra Club is correct, then the modifications that Congress enacted would serve by themselves to postpone construction pending the issuance of a new Biological Opinion. In light of its expressed intention to authorize immediate construction, we cannot conceive that Congress would have enacted the modifications knowing that its very action would necessarily cause further delay. Finally, Sierra Club urges that a recent drop in the population of red squirrels constitutes "new information" triggering the need for reini-tiation of consultation pursuant to 50 C.F.R. § 402.16(b). The potential for a dramatic drop in population under existing biological conditions was hardly an unforeseen circumstance— it was precisely because Congress anticipated that a drop might occur, due to existing circumstances or circumstances caused by construction, that it compromised by authorizing immediate construction of the first three telescopes but delaying construction of the next four. The compromise would be rendered of little significance if we were to interpret the statute as permitting the reinitiation of consultation as to the first three telescopes on the basis of a drop in the red squirrel population. . The only instance in which the Arizona-Idaho Conservation Act specifically addresses the subject of reinitiation of consultation relates to the exceeding of incidental take. The Arizona-Idaho Conservation Act expressly states that the construction of the first three telescopes shall be subject to the terms and conditions of Reasonable and Prudent Alternative Three of the Biological Opinion. One of the terms and conditions of Reasonable and Prudent Alternative Three is that the Fish and Wildlife Service and the Forest Service shall reinitiate formal consultation when more than six red squirrels are subjected to “incidental take.” Statements on the floor of the Senate and House expressly referred to that term and condition of Reasonable and Prudent Alternative Three. We recognize that the existence of this provision cuts against the argument that Congress sought to ensure definitively that regardless of the circumstances construction would not be further delayed because of concerns over the survivability of the red squirrel. Delay could indeed occur in this one specific instance. On the other hand, with respect to the specific point we are addressing here, the existence of an express exception suggests that other exceptions are not contemplated by the statute. Thus, the existence of the limited exception adds some strength to the argument against reading the statute as requiring reconsultation in the case of new or unanticipated occurrences. All in all, however, we cannot give much weight, one way or the other, to the inclusion of the incidental take provision in the Act. . We note that the October 1989 census gives rise to a question whether Sierra Club’s claim of a non-viable population has been rendered moot. See supra note 1. However, given our disposition of the National Forest Management Act issue, we need not consider mootness. . The boundaries of the critical habitat that was formally designated on January 5, 1990, are identical to those of the red squirrel "refugium” which the Forest Service had earlier designated in the Biological Opinion. The Forest Service had relied on the Fish and Wildlife Service’s proposed critical habitat. . A motion for reconsideration must be served "not later than 10 days after entry of the judgment.” Fed.R.Civ.P. 59(e). The district court denied Mountain States’ motion to intervene on November 20, 1989, but Mountain States did not move for reconsideration until January 2, 1990. . An untimely motion for reconsideration is construed as a motion based on Fed.R.Civ.P. 60(b). Straw v. Bowen, 866 F.2d 1167, 1171-72 (9th Cir.1989). Rule 60(b) permits relief from judgment where the movant can demonstrate, inter alia, “mistake, inadvertence, surprise, or excusable neglect,” or "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial.” Arizona-Idaho Conservation Act, Title VI, Mount Graham International Observatory, Pub.L. No. 100-696, 102 Stat. 4597 (1988).

Montana v. Johnson

CANBY, Circuit Judge: Montana sued for a declaration that § 505(a)(iv) of the Federal Land Policy Management Act (FLPMA), 43 U.S.C. § 1765(a)(iv) (1976), requires the Bonneville Power Administration (BPA) to obtain state certification before it constructs a ninety-mile power line across federal and nonfederal lands in Montana. In the alternative, assuming that § 505(a)(iv) does not require state certification, Montana requested a declaration that § 505(a)(iv) requires at least that BPA comply with the substantive provisions for environmental protection promulgated by Montana. The district court rejected both of Montana’s claims. Montana appeals. We affirm in part and reverse in part. First, we hold that Montana’s appeal is ripe and not moot. Second, we affirm the district court’s holding that § 505(a)(iv) of FLPMA does not require that BPA obtain state certification. Third, we hold that § 505(a)(iv) makes the specific substantive provisions adopted by Montana applicable to BPA’s activities on federal lands. Finally, we conclude that § 505(a)(iv) does not require BPA compliance with Montana’s substantive provisions off federal lands. Background A consortium of utilities is building two power plants at Colstrip, in southeastern Montana, and a power line west from Col-strip to Townsend, in southwestern Montana. In order to link the consortium’s new power plants and power line to BPA’s power grid in the Pacific Northwest, BPÁ is constructing a ninety-mile power line from Townsend to Hot Springs, in northwestern Montana. BPA’s power line crosses public lands administered by the Secretary of Interior, national forest lands administered by the Secretary of Agriculture, and nonfederal state or private lands. On August 18, 1981, the Secretaries of Interior and Agriculture granted BPA rights-of-way across the federal lands pursuant to Title V of FLPMA, 43 U.S.C. §§ 1761-71 (1976). Montana filed this action on March 3, 1981, claiming that the rights-of-way issued to BPA do not comply with § 505(a)(iv) of FLPMA, which provides: Each right-of-way shall contain ... terms and conditions which will ... require compliance with State standards for public health and safety, environmental protection, and siting, construction, operation, and maintenance of or for rights-of-way for similar purposes if those standards are more stringent than applicable Federal standards. Montana asserted that the rights-of-way should have contained provisions requiring BPA to obtain state certification for the Townsend to Hot Springs power line. As the foundation of an alternative claim, Montana reviewed BPA’s power line under the Montana Major Facility Siting Act, MontCode Ann. §§ 75-20-101 to -1205 (1983). That Act requires that power lines achieve “the minimum adverse environmental impact, considering the state of available technology and the nature and economics of the various alternatives.” Mont. Code Ann. § 75-20-301(2)(c) (1983). Montana determined that BPA’s power line would not achieve “minimum adverse environmental impact” unless BPA conformed its construction and operation of the power line to a list of specific provisions for environmental protection. Montana expressly limited the application of the provisions to BPA’s power line. One typical set of provisions in Montana’s list delineated construction procedures designed to limit sediment erosion. Mont. Dep’t of Natural Resources & Conservation, Construction Standards for 500 kV Townsend-Garrison Transmission Line §§ 11.1—.13 (1982). Another set of typical provisions protected various species of wildlife from adverse impacts by imposing seasonal restrictions on construction. Id. at §§ 8.1-.2; Mont. Bd. of Natural Resources & Conservation, Amended Conclusion and Final Determination H 1 (1982). Montana maintained that if § 505(a)(iv) does not require state certification, § 505(a)(iv) requires at a minimum that BPA comply with Montana’s specific substantive provisions. The state’s theory was that “minimum adverse environmental impact” is a “state standard for ... environmental protection” under § 505(a)(iv); therefore, because Montana’s specific provisions implement the state standard of “minimum adverse environmental impact,” the provisions should apply to BPA derivatively. The district court rejected Montana’s claims. First, it relied on Columbia Basin Land Protection Association v. Schlesinger, 643 F.2d 585 (9th Cir.1981), in holding that § 505(a)(iv) of FLPMA does not require that BPA obtain state certification. Second, the court ruled that the general requirement of “minimum adverse environmental impact” is not a “state standard for ... environmental protection” because of its “inherent subjectiveness.” Third, the district court considered whether Montana’s specific substantive provisions might be “state standards for ... environmental protection” in their own right. The court concluded, however, that the provisions could not be “standards” because they had not been previously promulgated and did not have widespread application. The federal government urges us to adopt the district court’s position in this appeal. In addition, it argues that even if § 505(a)(iv) requires state certification or compliance with Montana’s substantive provisions for BPA’s activities on federal lands, § 505(a)(iv) does not authorize the Secretaries of Interior and Agriculture to restrict BPA’s activities off federal lands. The utility companies that comprise the power consortium intervened as defendants. They argue that we should dismiss the case as unripe or moot. Analysis I. Justiciability The defendant-intervenors argue that the appeal lacks ripeness because BPA may voluntarily comply with all of Montana’s specific substantive requirements. They maintain that unless Montana shows that there exists real disagreement over a substantive requirement, adjudication of the merits of the appeal will merely give the parties an advisory opinion. The defendant-intervenors’ ripeness argument fails with respect to the state certification issue. Montana contends that BPA must obtain state certification, which BPA refuses to do. That disagreement is real and presents a ripe controversy. The defendant-intervenors’ ripeness argument also fails with respect to whether BPA must comply with Montana’s substantive provisions on and off federal lands. “[T]he question of ripeness turns on ‘the fitness of the issues for judicial decision’ and ‘the hardship to the parties of withholding court consideration’”. Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Commission, 461 U.S. 190, 103 S.Ct. 1713, 1720, 75 L.Ed.2d 752 (1983) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967)). Both ripeness factors support justiciability. The compliance issue is fit for adjudication because it raises exclusively legal questions. There is hardship to the parties because Montana risks wasting extensive administrative resources if it determines BPA’s compliance with its substantive provisions before receiving assurance that § 505(a)(iv) of FLPMA requires that compliance. The defendant-intervenors also contend that the appeal is moot because the power line will be energized before the appeal is decided. The contention lacks merit. We have the power to order the removal of the power line if we determine that it was constructed in violation of federal law. Columbia Basin Land Protection Association v. Schlesinger, 643 F.2d 585, 591 n. 1 (9th Cir.1981). Therefore, the emplacement and activation of the line does not render the case moot. Id. II. State Certification Montana asks us to rule that § 505(a)(iv) of FLPMA requires that BPA obtain state certification before constructing the power line. Columbia Basin squarely confronted that issue and resolved it against the position Montana urges. There we held that § 505(a)(iv) of FLPMA requires that BPA comply with state “substantive standards” but not with state procedural requirements. 643 F.2d at 604-05. Accord Citizens & Landowners Against the Miles City/New Underwood Powerline v. DOE, 683 F.2d 1171, 1179-80 (8th Cir.1982). Montana does not dispute that Columbia Basin is controlling; instead, it asks us to overrule Columbia Basin. We reject Montana’s request. We are bound by the decisions of prior panels. First Charter Financial Cory. v. United States, 669 F.2d 1342, 1347 (9th Cir.1982); Ellis v. Carter, 291 F.2d 270, 273 n. 3 (9th Cir.1961). Montana does not argue that any en banc decisions, Supreme Court decisions, or legislation subsequent to Columbia Basin undermine that case. Therefore, we have no power to overrule Columbia Basin. III. Montana’s Substantive Provisions Alternatively, Montana argues that § 505(a)(iv) of FLPMA requires that BPA comply with Montana’s substantive regulations. Montana maintains that its general requirement of “minimum adverse environmental impact” is a “state standard for ... environmental protection” under § 505(a)(iv) of FLPMA. Because the specific substantive provisions promulgated by Montana implement that standard, the state argues that the specific provisions must likewise apply to BPA. A. The General Provision The district court held that Montana’s broad requirement of “minimum adverse environmental impact” was too subjective and vague to serve as a “standard” for purposes of § 505(a)(iv). We agree. By itself, the general requirement would be incapable of offering any guidance to the Secretaries of Interior and Agriculture. See Romero-Barcelo v. Brown, 643 F.2d 835, 855-56 (1st Cir.1981) (state nuisance law which prohibited unreasonably loud noises was too general to come within 42 U.S.C. § 4903(b), which makes “state ... requirements respecting ... noise” applicable to federal instrumentalities), rev’d on other grounds, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). B. The Specific Provisions Although Montana’s broad requirement is not a “standard” under § 505(a)(iv), at least if it stands by itself, our inquiry does not end there. Montana has promulgated a host of detailed substantive provisions with which it wants BPA to comply. If those specific provisions are “state standards for ... environmental protection” in their own right, then § 505(a)(iv) will make them directly applicable to BPA’s activities on federal lands. Whether Montana’s specific substantive provisions are “state standards for ... environmental protection” in their own right turns on whether their ad hoc, route-specific nature prevents them from being “standards.” The district court held that Montana’s specific provisions were not “standards” because they had been adopted on an ad hoc basis. If the specific provisions were previously promulgated and if they regulated other power lines in Montana, the parties would agree that the provisions apply to BPA’s activities on federal lands. For three principal reasons, we hold that Montana’s specific measures for environmental protection are “standards” despite their lack of previous promulgation and widespread applicability. First, the provisions which Montana seeks to impose upon BPA concretely regulate how BPA should construct and operate the power line. They therefore meet the ordinary conception of “standards.” One provision requires that “[a]ll ruts made by machinery shall be filled to prevent channeling.” Mont. Dep’t. of Natural Resources & Conservation, Construction Standards for 500 kV Townsend-Garrison Transmission Line § 11.5 (1982). Another typical measure specifies that 5.0 lbs/acre of Bluebunch wheatgrass must be reseeded on dry sites at high elevation after construction. Id. at § 15.9. Such detailed regulation of future activities falls within the ordinary meaning of “standards.” Second, the structure of § 505(a)(iv) of FLPMA confirms that “standards” should not be interpreted to require prior promulgation and widespread applicability. Section 505(a)(iv) differentiates between standards for public health, safety, and environmental protection on the one hand and standards for the siting, construction, operation, and maintenance of power lines on the other. The latter standards, but not the former, are applicable under § 505(a)(iv) only if they apply “of or for rights-of-way for similar purposes.” We interpret the quoted phrase to require that standards for siting, construction, operation and maintenance apply both to the federal rights-of-way and to the rights-of-way which cross state or private lands. If that requirement of general application were inherent in the term “standard,” then “of or for rights-of-way for similar purposes” would be superfluous and would not distinguish standards for public health, safety, and environmental protection from standards for siting, construction, operation, and maintenance. Third, it accords better with the legislative intent to regard Montana’s route-specific provisions as “standards” under § 505(a)(iv). The language of § 505(a)(iv) evinces the principal purpose of allowing states to impose more stringent measures for environmental protection on right-of-way grantees than the federal government requires. The central purpose of more stringent environmental protection at the option of the state is furthered by according states the discretion to impose route-specific requirements on federal grantees. In many instances, a state could not effectively protect the environment if it were restricted to promulgating, in advance, quantifiable standards that apply in numerous instances. Because each power line crosses a unique environment, the tradeoffs involved in environmental protection must frequently be made on an ad hoc, case-by-case basis. To take one example, protection of the environment often requires weighing the benefits of routing a power line away from an environmentally sensitive area against the costs of doing so. The federal government argues that holding Montana’s specific provisions to be “standards” under § 505(a)(iv) is contrary to Columbia Basin because it subjects BPA, in substance if not in form, to the state certification process. The government points out that Hancock v. Train, 426 U.S. 167, 179, 96 S.Ct. 2006, 2012, 48 L.Ed.2d 555 (1976), and EPA v. State Water Resources Control Board, 426 U.S. 200, 211, 96 S.Ct. 2022, 2027, 48 L.Ed.2d 578 (1976), require a clear and unambiguous indication of congressional intent to subject the federal sovereign to such state regulatory power. We do not find the government’s arguments to be persuasive. In the first place, the proper construction of “standards” under § 505(a)(iv) cannot be controlled by presumptions relating only to federal instrumentalities; section 505(a)(iv) applies to any entity, public or private, that obtains a right-of-way over federal lands. In the second place, for federal authorities to impose Montana’s route-specific requirements for environmental protection on BPA is a far cry from subjecting BPA to the state certification process. If BPA were required .to obtain state certification, Montana could deny certification on the ground that the facility was unnecessary, was inconsistent with regional plans for expansion, or would not be sufficiently reliable. See Mont.Code Ann. § 75-20-301(2)(a),301(2)(e)(ii), 301(2)(c)(iii) (1983). Holding that Montana may impose ad hoc measures for environmental protection upon BPA affords Montana none of those powers. If anything, Columbia Basin supports Montana’s authority to impose route-specific requirements on BPA. We ruled in Columbia Basin that BPA had to comply with Washington’s substantive standards for environmental protection. Washington, however, regulates power lines on the same ad hoc basis as does Montana. See Wash.Rev. Code Ann. §§ 80.50.010-.50.902 (West. Supp.1983). If we did not regard ad hoc provisions as “standards” under § 505(a)(iv), our ruling in Columbia Basin would have been an exercise in futility. We hold that Montana’s specific measures for environmental protection are “state standards for ... environmental protection” in their own right under § 505(a)(iv) of FLPMA. Therefore, Montana’s specific measures are directly applicable to BPA’s activities on federal lands. IV. Off Federal Lands Montana argues that § 505(a)(iv) of FLPMA requires that the Secretaries of Interior and Agriculture condition the rights-of-way issued to BPA upon BPA’s compliance with Montana’s substantive provisions off federal lands. Montana asserts that it is absurd to hold that BPA must comply with Montana’s substantive requirements on federal land, but not on state or private land where the state’s interest is greater and the federal interest less. The language of § 505(a)(iv) could bear Montana’s interpretation. Section 505(a)(iv) does not expressly limit the applicability of the right-of-way conditions to federal lands. Although the legislative history supports limiting their applicability, it is not determinative. The Senate version of FLPMA provided that “[t]he Secretaries] shall ... insure that activities on the right-of-way will not violate applicable air and water quality standards or applicable transmission, powerplant, and related facility siting standards.” S. 507, 94th Cong., 1st Sess. § 403(d)(1) (1975) (emphasis added). Clearly the limiting phrase “on the right-of-way” expresses a Senate intent to limit the conditions imposed on rights-of-way to federal lands. However, the phrase was dropped without explanation from the enacted version of FLPMA. To resolve the federal lands issue, we must look outside § 505(a)(iv)’s express language and recorded legislative history. Montana’s position might be persuasive if § 505(a)(iv) applied exclusively to rights-of-way issued to federal instrumentalities. Section 505(a)(iv), however, applies to all rights-of-way grantees, public or private. When it is recognized that § 505(a)(iv) applies to private grantees, Montana’s position becomes untenable. If, as Montana argues, § 505(a)(iv) requires that the Secretaries condition rights-of-ways upon grantee compliance with state standards off federal lands, then § 505(a)(iv) places on federal shoulders the duty of insuring that private entities comply with state requirements on state and private land. That is a result which Congress could not have intended. Therefore, we conclude that the obligations of the Secretaries of Interior and Agriculture under § 505(a)(iv) are limited to federal lands. The application of § 505(a)(iv) to the facts of this appeal may produce a strange result. We cannot avoid that result, however, by inserting into § 505(a)(iv) an obligation which Congress excluded. CONCLUSION We affirm the district court’s holding that BPA need not obtain state certification before constructing and operating the Townsend to Hot Springs power line. We also affirm the district court’s holding that BPA need not comply with Montana’s substantive provisions off federal lands. We reverse, however, the district court’s determination that BPA need not comply with Montana’s specific substantive provisions for environmental protection while engaged in activities on federal lands. Those specific substantive provisions are “state standards for ... environmental protection,” applicable to BPA through § 505(a)(iv) of PLPMA. . Montana’s argument is weak even if evaluated on the merits. Montana argues that a 1977 amendment to the Clean Air Act, Pub.L. No. 95-95, Title I, § 116, 91 Stat. 685, 711 (codified at 42 U.S.C. § 7418(a) (1982)), and a 1977 amendment to the Federal Water Pollution Control Act, Pub.L. 95-217, § 61(a), 91 Stat. 1566, 1598 (codified at 33 U.S.C. § 1323(a) (1982)), show that Congress intended that applicants for rights-of-way under FLPMA obtain state certification. Although the 1977 amendments do require federal instrumentalities to comply with the procedural provisions of the state air and water pollution laws, we do not regard amendments by a subsequent Congress to different statutes as bearing on the proper interpretation of FLPMA. . Montana argues that its general requirement of "minimum adverse environmental impact” should be regarded as a "standard" under § 505(a)(iv) when, as here, the general requirement is accompanied by specific implementing regulations. In view of our holding below that the specific implementing regulations are "standards” in their own right, we need not address that argument. . Most of Montana's substantive provisions for environmental protection regulate the construction process. It could be argued that those provisions should be treated exclusively as construction standards. So treated, the provisions would not be directly applicable to BPA through § 505(a)(iv) because the provisions do not apply to rights-of-way which cross state or private lands. We reject that argument. Siting, construction, operation, and maintenance exhaust the steps involved in the transmission of electricity across federal lands. If we held that any standard for public health, safety, or environmental protection which also regulates siting, construction, operation, or maintenance must be treated exclusively as a siting, construction, operation, or maintenance standard, no standard would receive treatment as a standard for public health, safety, or environmental protection under § 505(a)(iv). Our position does not render nugatory the distinction between standards for public health, safety, and environmental protection and standards for siting, construction, operation, and maintenance. There are some standards, for instance standards specifying the terms and conditions of employment, which will be siting, construction, operation, or maintenance standards without being standards for public health, safety, or environmental protection. . The legislative history does not expand upon the purpose evident in the statutory language. The requirement that federal grantees comply with state standards for public health, safety, and environmental protection was added to FLPMA during the course of the House debates. 122 Cong.Rec. 7620-21 (1976). Neither those debates nor the subsequent Conference Report, H.R.Rep. No. 1724, 94th Cong., 2d Sess. 65 (1976), reprinted in 1976 U.S.Code Cong. & Ad. News 6175, 6228, 6236, elaborate upon the meaning of the express language in § 505(a)(iv). . BPA does not contend that federal instrumentalities are wholly beyond the reach of § 505(a)(iv). Nor could it, in view of Columbia Basin, 643 F.2d at 598-601, and Citizens & Landowners Against the Miles City/New Underwood Powerline v. DOE, 683 F.2d 1171, 1179 (8th Cir.1982). Section 507(a) of FLPMA, 43 U.S.C. § 1767(a) (1976), authorizes the Secretaries of Interior and Agriculture to provide rights-of-way to federal agencies "under applicable provisions of this subchapter”; § 505(a)(iv) is an "applicable provision” and accordingly applies to federal instrumentalities. . A right-of-way grantee that believes that the state’s measures for environméntal protection reflect the state’s desire to veto the power line, and not a true concern for environmental protection, may, of course, bring its claim before an appropriate court. . The dissent suggests that the Eighth Circuit considered and rejected the argument that route-specific provisions are "standards” under § 505(a)(iv), citing Citizens & Landowners Against the Miles City/New Underwood Powerline v. DOE, 683 F.2d 1171 (8th Cir.1982). There, however, the state contended that the only way that it could enforce site-specific regulations was to subject the federal grantee to state licensing procedures. The Eighth Circuit held, as we do, that the federal agency could not be subjected to state procedural requirements. Id. at 1181-82. . Columbia Basin confirms our interpretation of § 505(a)(iv). There we held that BPA need not obtain a federal right-of-way for construction activities off federal lands. 643 F.2d at 601-02. It would undermine that holding to read § 505(a)(iv) as nonetheless requiring the Secretaries of Interior and Agriculture to regulate BPA’s activities off federal lands. . Our holding will not necessarily produce the absurd result which Montana fears. The Energy Act requires that BPA "give due consideration” to Montana’s energy plan. 42 U.S.C. § 7113 (Supp. I 1977). That Act, or some other provision of federal law, may impose an obligation on BPA to comply with Montana’s substantive standards off federal lands. But cf. Citizens and Landowners Against the Miles City/New Underwood Powerline v. DOE, 683 F.2d 1171, 1180-81 (8th Cir.1982) (the Energy Act does not impose a duty upon the Western Area Power Administration, BPA’s sister administration, to comply with state certification procedures). In addition, section 507(a) of FLPMA, 43 U.S.C. § 1767(a) (1976), would appear to give the Secretaries the discretion, although not the duty, to require BPA compliance with Montana’s substantive provisions.

Montana v. Johnson

BOOCHEVER, Circuit Judge, dissenting in part: I agree with Judge Canby’s opinion except for the holding that the ad hoc, route-specific requirements constitute state standards for the purposes of section 505(a)(iv). I believe that the district court was correct in defining “standard”, as implying some type of preexisting, tangible, objective criteria. Although there is a dearth of reported cases construing the term “standard,” Romero-Barcelo v. Brown, 643 F.2d 835 (1st Cir.1981), rev’d. on other grounds, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), supports the district court’s construction. The First Circuit held that a state nuisance law which prohibited unreasonably loud noises was too general to constitute a “requirement” as used by Congress in section 4 of the Noise Control Act, 42 U.S.C. § 4903(b). That act provides that federal agencies must comply with state “requirements” for control and abatement of environmental noise. The court reasoned that the word “requirements” contemplates specific, uniform standards rather than general standards that require case-by-case determinations. Id. at 855-56. More closely in point is Citizens and Landowners Against the Miles City/New Underwood Powerline v. U.S. Dept. of Energy, 683 F.2d 1171 (8th Cir.1982), in which an attempt was made to require the Western Area Power Administration to comply with South Dakota right of way requirements on a case-by-case basis. South Dakota laws provided for general criteria similar to Montana’s “minimum adverse environmental impact” requirement, id. at 1181-82 n. 20, and again, like Montana, sought to tailor the requirements to the specific project. The court pointed out that the substantive standards were to be determined by the state on a case-by-case basis through the permit application procedure. The Eighth Circuit, following our decision in Columbia Basin, held that South Dakota could not impose procedural compliance. It, however, rejected the South Dakota Commission’s ad hoc orders as tantamount to requiring compliance with the state’s procedural requirements. Id. at 1182. Congress has provided that federal departments give due consideration to state needs. Where practical, they must attempt to resolve conflicts through consultation with appropriate state officials. 42 U.S.C. § 7113. But Congress has not otherwise provided for accommodation of state ad hoc, case-by-case requirements. I therefore would affirm the district court’s decision that compliance with such requirements is not mandated by the Federal Land Policy & Management Act. . The majority correctly states that in Columbia Basin we held that the BPA had to comply with Washington substantive standards. That case, however, does not consider the issue before us now of whether state route-specific ad hoc requirements may be enforced as standards.

Hanly v. Kleindienst

PER CURIAM: This is an appeal from a denial of a preliminary injunction which sought to halt the construction of the Metropolitan Correction Center, one of two buildings comprising the Foley Square Courthouse Annex. Except for one point, discussed below, we would affirm the judgment of the lower court solely on the basis of Judge Tenney’s well reasoned opinion. Judge Tenney held, quite properly we think, that the General Services Administration (GSA) did not act arbitrarily or capriciously in determining, by a supplemental report filed April 6, 1973, reaffirming previous findings, that the Annex would not significantly affect the quality of the human environment under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, and more specifically § 4332(2) (C), as well as under the decisions of this court in Hanly v. Mitchell, 460 F.2d 640 (2d Cir.), cert, denied, 409 U.S. 990, 93 S.Ct. 313, 34 L.Ed.2d 256 (1972) , and Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972), cert, denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973) . One point, however, was raised on appeal which was not before the lower court. This involves two identical letters sent by GSA, one to Mayor Lindsay and the other to Governor Rockefeller. Appellants claim that the letters constitute an admission by GSA of the significant effect the Annex would have on the environment, thus requiring an impact statement under NEPA. We do not find the letters to be such. The terms of the last sentences of the letters do not constitute any admission that GSA had found there would be significant impact on the community; rather they refer to “any project which may have a substantial impact on the community.” (Emphasis supplied.) Nor do we believe that these sentences, which appear to be matters of form unrelated to the specifics of the case, were intended to evidence that the GSA Regional Administrator, under whose name they went out, had reached any conclusion on the question whether the Annex would significantly affect the environment. Consultation and coordination between federal and local officials involving the acquisition of land and construction of a building in an urban environment, especially concerning plans for water supply, sewage disposal, solid waste disposal, etc., should be done as a matter of common sense; it is also required by law. See 40 U.S.C. § 533. And there is no limitation that this be done only when such projects significantly affect the community or its environment. Deciding as we do that these letters are not admissions by GSA of any significant impact on the community, we need not reach the question whether an action “having a significant impact on community development” under § 401(a) of the Intergovernmental Cooperation Act of 1968, 42 U.S.C. § 4231(a), constitutes an action “significantly affecting the quality of the human environment” under NEPA, thereby requiring an impact statement. Judgment affirmed. . The letters begin with an identification of the parcel of land involved, continue with descriptions and data relative to the buildings in the Annex, including plans for utility services, and finish with the following sentences : The Intergovernmental Cooperation Act of 1968, and administrative directives of the President, direct that there be consultation with the appropriate officials in the planning of any federal project which may have a substantial impact on the community. Therefore, we would appreciate your cooperation and comments in this endeavor.

City of Sausalito v. O'Neill

WILLIAM A. FLETCHER, Circuit Judge: The City of Sausalito, California, brings suit to enjoin the National Park Service from implementing its plans for the development and rehabilitation of Fort Baker, a former military base near Sausalito. Sau-salito contends that the National Park Service, the National Marine Fisheries Service, and the United States Fish and Wildlife Service have violated numerous environmental and conservation-oriented statutes, including the National Environmental Policy Act, 42 U.S.C. §§ 4321-4347; the Endangered Species Act, 16 U.S.C. §§ 1531-1544; the Coastal Zone Management Act, 16 U.S.C. §§ 1452-1465; the Migratory Bird Treaty Act, 16 U.S.C. §§ 703-712; the Marine Mammal Protection Act, 16 U.S.C. §§ 1371-1421h; the National Park Service Concessions Management Improvement Act, 16 U.S.C. § 5951, et seq.; the Omnibus Parks and Public Lands Management Act of 1996, 16 U.S.C. § 17o; the National Park Service Organic Act, 16 U.S.C. §§ 1-18Í-3; the Act creating the Golden Gate National Recreation Area, 16 U.S.C. § 460bb; and the Administrative Procedure Act, 5 U.S.C. §§ 701-706. The magistrate judge, hearing the case by consent, granted summary judgment for Defendants, holding that Sausalito lacked standing to assert many of its claims, and that the other claims failed on the merits. We hold that Sausalito has standing to assert all of its claims. However, with the exception of its claims under the Coastal Zone Management Act and the Marine Mammal Protection Act, we hold that Sausalito’s claims fail on the merits. I. Background Fort Baker (“the Fort” or “the site”) is located in Marin County, California, just over the Golden Gate Bridge from San Francisco. The Fort lies in a 335-acre valley just inside the entrance to San Francisco Bay. It is bounded to the south and east by the shore of the Bay. The City of Sausalito is just north of the Fort, also on the shore of the Bay. Fort Baker was established as an Army post around the turn of the last century. In 1972, when Congress established the Golden Gate National Recreation Area as a unit of the National Park System, Fort Baker was included in the Recreation Area’s boundaries, with the expectation that it would be fully incorporated once it was no longer needed by the Army. See 16 U.S.C. § 460bb-2. The Army has been transferring portions of the site to the National Park Service (“Park Service”) since the mid-1980s. The Base Closure Act, 10 U.S.C. § 2687, mandated that Fort Baker be closed as an Army facility and completely transferred to the Park Service by 2001. Fort Baker has been described as “one of the most special gems” of the Golden Gate National Recreation Area. It is praised for its serenity, hiking trails, wildlife, water access, and scenic views. Numerous species of wildlife and vegetation live at Fort Baker, including the endangered Mission Blue Butterfly, for which the Fort is one of its few remaining habitats. The site includes 183 acres of tideland, more than a mile of rocky shoreline, and a harbor at Horseshoe Bay that is protected by a ten-acre breakwater. Because of two dozen historic buildings arranged around the perimeter of a ten-acre “Parade Ground,” the Fort is classified as a historic district in the National Register of Historic Places. The Fort is also home to the Bay Area Discovery Museum, a United States Coast Guard Station, and the Presidio Yacht Club. In 1980, the Park Service drew up a General Management Plan (“GMP”) for the Golden Gate National Recreation Area, including a discussion of the possible future uses of Fort Baker. Pursuant to the National Environmental Protection Act, the GMP was accompanied by an environmental impact statement (“EIS”). The GMP approved the use of historic buildings at Fort Baker as a conference center, the removal of a wooden bulkhead to restore a beach, improvements to the landscape, and the construction of additional parking. In anticipation of the complete transfer of Fort Baker to its authority, the Park Service later sought to update the GMP’s proposals to account for critical developments that had occurred since 1980, such as the discovery of a federally listed endangered species at the site. The Park Service therefore prepared a new EIS, which is site-specific to Fort Baker. The Park Service initiated public scoping in 1997, followed by a period of public comments and meetings. In October 1998, the Park Service released its draft EIS. Thereafter, the Park Service conducted another public scoping, took public comments, and held an additional public meeting. After close of the review period in December 1998, the Park Service agreed to hold additional meetings with Sausalito to address its concerns about the draft EIS. A final EIS (“FEIS”) was released in October 1999. The FEIS details four alternatives for developing Fort Baker, and selects one of these as the plan it proposes to implement (“Fort Baker Plan” or “Plan”). In formulating these alternatives and selecting the Fort Baker Plan, the FEIS identifies the needs of the site, the purpose for the action, and the objectives the Park Service seeks to achieve. The FEIS identifies three major needs to which the proposed action responds. First, the FEIS recognizes a need to “arrest deterioration” of Fort Baker’s historic buildings and “allow for occupancy that will provide for their ongoing care.” Second, noting that “Fort Baker’s natural values are also exceptional,” the FEIS recognizes that “[pjrotection and enhancement of the natural resources of the site as it receives greater public use will require a comprehensive strategy to balance these needs.” Third, the FEIS notes that “existing facilities and features for visitors’ enjoyment for the site are minimal and inadequate” and that “[t]he Bay Area Discovery Museum [ ] requires additional space at Fort Baker for its program.... ” Based on these stated needs, the FEIS identifies five purposes of the proposed action. These purposes are to identify: (1) “the program and types of uses that would be accommodated in the historic buildings that would generate adequate revenue for building rehabilitation and preservation”; (2) “improvements to facilitate public uses, including new construction and removal of buildings, landscape treatments, trails, parking circulation, and locations and patterns of use”; (3) “waterfront improvements”; (4) “opportunities for habitat restoration”; and (5) “an approach to the protection, rehabilitation and maintenance of historic and natural resources.” Based on these needs and purposes, the FEIS proposes six objectives designed to “create a framework for considering and evaluating new uses and site improvements.” First, the proposed action should promote the Park Service’s mission by providing public programs and opportunities; protecting, restoring, and maintaining historic, cultural, and natural resources; and providing opportunities for education and interpretation to a diverse public constituency. Second, the proposed action should achieve both environmental and financial sustainability. The latter objective means that the proposed action should “[gjenerate a stable source of revenue that contributes to historic, cultural and natural resource preservation and interpretation including overall site and infrastructure costs.” Third, the proposed action should retain and complement the site’s special qualities by demonstrating a compelling reason for the program’s location at Fort Baker, and by providing waterfront access. Fourth, the proposed action should promote public access by providing for park user and program diversity and promoting public access to buildings and programs. Fifth, the proposed action should minimize environmental impacts, including impacts to the site, adjacent communities, other park sites, traffic, and parking. Sixth, the proposed action should retain and complement permanent site tenants and other Golden Gate National Recreation Area sites and programs, including the Bay Area Discovery Museum and the Coast Guard Station. Under the Fort Baker Plan chosen by the Park Service, a conference and retreat center, with a maximum of 350 guest rooms, will be established near the Parade Ground using both rehabilitated historic structures and new structures. Parking for a maximum of 455 cars will be provided in already disturbed areas. The Bay Area Discovery Museum will be expanded, and its parking facilities relocated and expanded. The Coast Guard is authorized to build a small addition to its existing facility. The Presidio Yacht Club’s facilities and marina will be opened to the public. A wooden bulkhead will be removed, and the beach will be restored. Forty-two acres of natural habitat, including twenty-three acres of existing Mission Blue Butterfly habitat, will be maintained, enhanced, or restored. Hiking trails throughout the site will be rehabilitated. The Plan also outlines various measures to mitigate anticipated adverse environmental impacts. In June 2000, the Park Service issued the Record of Decision, which adopted the Fort Baker Plan, including its mitigation measures, as the proposed action for the site. Sausalito filed suit challenging the Plan in federal district court. The court granted summary judgment in favor of Defendants. City of Sausalito v. O’Neill, 211 F.Supp.2d 1175 (N.D.Cal.2002). The court held that Sausalito lacked standing to assert its claims under the Coastal Zone Management Act, the Marine Mammal Protection Act, the Migratory Bird Treaty Act, the National Park Service Concessions Management Improvement Act, and the Omnibus Parks and Public Lands Management Act of 1996. The court also held that Defendants had not violated the National Environmental Protection Act, the Endangered Species Act, the National Park Service Organic Act, or the Act creating the Golden Gate National Recreation Area. Sausalito timely appealed. We review the district court’s summary judgment order de novo. United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.2003). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the court below correctly applied the relevant substantive law. See id. II. Standing We review a party’s standing de novo. Gospel Missions of Am. v. City of Los Angeles, 328 F.3d 548, 553 (9th Cir. 2003). The standing inquiry involves both Article III limitations and non-constitutional statutory limitations. See Pershing Park Villas Homeowners Ass’n v. United Pac. Ins. Co., 219 F.3d 895, 899 (9th Cir. 2000). A. Article III Standing To satisfy Article III standing, Sausalito must demonstrate that “(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The nature of the Article III standing inquiry is not fundamentally changed by the fact that in many of its causes of action Sausalito asserts a “procedural,” rather than “substantive,” injury. We have recently stated, with respect to “procedural injury,” that to show a cognizable injury in fact, [a plaintiff] must allege ... that (1) the [agency] violated certain procedural rules; (2) these rules protect [a plaintiffs] concrete interests; and (3) it is reasonably probable that the challenged action will threaten their concrete interests. Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 969-70 (9th Cir. 2003). Whether substantive or procedural injury is alleged, a plaintiff must show a “concrete interest” that is threatened by the challenged action. That is, for Article III purposes, we may recognize a “procedural injury” when a procedural requirement has not been met, so long as the plaintiff also asserts a “concrete interest” that is threatened by the failure to comply with that requirement. For example, a cognizable procedural injury exists when a plaintiff alleges that a proper EIS has not been prepared under the National Environmental Policy Act when the plaintiff also alleges a “concrete” interest — such as an aesthetic or recreational interest — that is threatened by the proposed action. See Sierra Club v. Morton, 405 U.S. 727, 738, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (aesthetic and recreational harms may amount to concrete injury-in-fact). For purposes of Article IIP standing, we do not require a plaintiff to demonstrate that a procedurally proper EIS will necessarily protect his or her concrete interest in the park. Under Citizens for Better Forestry, a cognizable procedural injury exists for Article III purposes when, because of a failure to honor a statutorily required procedure, it is “reasonably probable that the challenged action will threaten [a plaintiffs] concrete interests.” 341 F.3d at 969-70. As a municipality, Sausalito may not simply assert the particularized injuries to the “concrete interests” of its citizens on their behalf. See Colorado River Indian Tribes v. Town of Parker, 776 F.2d 846, 848 (9th Cir.1985) (“[Cities] cannot sue as parens patriae because their power is derivative and not sovereign.”). Rather, as a municipality, Sausalito may sue to protect its own “proprietary interests” that might be “congruent” with those of its citizens. Id. The term “proprietary” is somewhat misleading, for a municipality’s cognizable interests are not confined to protection of its real and personal property. The “proprietary interests” that a municipality may sue to protect are as varied as a municipality’s responsibilities, powers, and assets. We have recognized that a municipality has an interest in, inter alia, its ability to enforce land-use and health regulations, Scotts Valley Band of Pomo Indians of Sugar Bowl Rancheria v. United States, 921 F.2d 924, 928 (9th Cir.1990), and its powers of revenue collection and taxation, Colorado River, 776 F.2d at 848-49. A municipality also has a proprietary interest in protecting its natural resources from harm. Fireman’s Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 944 (9th Cir. 2002), amending 271 F.3d 911 (9th Cir. 2001). We have also found constitutionally sufficient injury to proprietary interests where “land management practices of federal land could affect adjacent [city]-owned land.” Douglas County v. Babbitt, 48 F.3d 1495, 1501 (9th Cir.1995) (internal quotation marks and citation omitted). Sausalito has met its burden of establishing concrete “injury in fact” to its proprietary interests. Sausalito’s city manager, Dana Whitson, testified by declaration that: Sausalito expends millions of dollars annually on the maintenance and management of City lands, historic districts, streets, parking lots, sidewalks, marinas, libraries, meeting halls and other public facilities, and on the provision of public services including fire, police, shuttle bus, trash collection, parking and enforcement of land use plans and zoning regulations. Sausalito and its citizens and employees would be harmed by implementation of the Fort Baker Plan and the 2,700 daily visitors it would unleash in numerous significant respects including, but not limited to: congested streets, parks, parking lots, and sidewalks, increased crime, noise and trash, impaired and impeded use of streets for fire, police and other emergency services and for the City’s natural gas shuttle bus service, impaired air quality, particularly along major thoroughfares, lost property and sales tax revenue due to impaired vehicular movement and commerce rendering Sausalito less attractive to business. The Fort Baker Plan will harm Sau-salito’s tourism industry because added traffic congestion and crowded streets will destroy the City’s quiet, beauty, serenity and quaint and historic village character and attributes. The City’s tourism industry and dependent property and sales tax revenues would also suffer because the City’s marina, parks, trails and shoreline would be less attractive and ecologically healthy.... * * * A large proportion of tourist “traffic” into Sausalito arrives by ferry or bus. Due to its isolated location, hotel guests at the proposed Fort Baker conference center will access Sausalito by car and thereby increase vehicular congestion in the City’s quiet streets. The district court found that Whitson’s declaration sufficiently demonstrates Article III injury, stating that the “Fort Baker Plan would result in a detrimental increase in traffic and crowds in downtown Sausali-to, affecting City-owned streets as well as municipal management and public safety functions.” City of Sausalito, 211 F.Supp.2d at 1186. We agree. We add that Sausalito also asserts injury to its aesthetic appeal in that the congestion accompanying the Plan “will destroy the City’s quiet, beauty, serenity and quaint and historic village character and attributes.” This injury is cognizable as both an aesthetic injury and — because the City alleges that the aesthetic damage will erode its tax revenue — as an economic injury. See Friends of the Earth, 528 U.S. at 183, 120 S.Ct. 693. Finally, the declaration asserts injury to Sausalito’s natural resources, citing an increase in “noise and trash,” “impaired air quality,” and harm to its “marina, parks, trails and shoreline.” We hold that each of the management, public safety, economic, aesthetic, and natural resource harms constitutes injury to Sausalito’s “proprietary” interests as a municipal entity. Applying the three Friends of the Earth factors, we hold that Sausalito has adequately claimed injury for Article III purposes. First, Sausalito has alleged harm to its proprietary interests with sufficient detail to state a “concrete and particularized” injury. Id. at 180, 120 S.Ct. 693. Second, the injuries are “actual or imminent, not conjectural or hypothetical!,]” and are “fairly traceable” to the implementation of the Fort Baker Plan. Id. The FEIS itself acknowledges that implementation of the Plan will result in an increase in local traffic, an increase in air pollutant emissions, and an incremental contribution to the cumulative noise environment. The FEIS thus finds that implementation of the Fort Baker Plan will result in known, predictable consequences that Sausalito identifies as concrete injury. Third, because Sausalito’s asserted injuries will not occur if the Plan is not implemented, Sausalito has alleged injury that can be redressed by a decision blocking implementation of the Plan. Id. at 180-81, 120 S.Ct. 693. To put it in the terms we used in Citizens for Better Forestry, if the Plan is not implemented, the “reasonably probable” threat to Sausalito’s concrete proprietary interests will have been removed. 341 F.3d at 969. B. Non-constitutional Standing It is not enough, however, for a plaintiff to satisfy the constitutional standing requirements of Article III. A plaintiff must also satisfy the non-constitutional standing requirements of the statute under which he or she seeks to bring suit. This non-constitutional standing inquiry is not whether there is a “case or controversy” under Article III, and thus does not go to our subject matter jurisdiction. Rather, the nonconstitutional standing inquiry is whether a particular plaintiff has been granted a right to sue by the statute under which he or she brings suit. Once the Article III standing requirement is satisfied, this is a purely statutory inquiry. Some statutes grant standing narrowly. Under such statutes, some would-be plaintiffs with obvious, real-world interests in the outcome of a suit are nevertheless unable to sue because the statute has not conferred standing upon them. See, e.g., United Dairymen of Arizona v. Veneman, 279 F.3d 1160, 1165 (9th Cir. 2002) (under Block v. Cmty. Nutrition Inst., 467 U.S. 340, 352, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984), milk consumers have no standing to challenge milk market order under the Agricultural Marketing Agreement Act, even though the effect of the order is to increase retail milk prices). Other statutes grant standing very broadly, some as broadly as Article III permits. Under such statutes, would-be plaintiffs with small or minimal real-world interests are able to sue. See, e.g., Friends of the Earth, 528 U.S. at 180-89, 120 S.Ct. 693 (upholding standing for plaintiff suing under citizen-suit provision of the Clean Water Act). Statutes, however, rarely spell out in specific terms who does and does not have standing to sue. In difficult or uncertain cases, courts are left to infer the answer from various sources, including the purpose of the statute and background assumptions drawn from the common law. See Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U.L. REV. 881, 886 (1983). But the fundamental inquiry is straightforward, even if the answer is not always obvious: Does the statute in question confer a right to sue on the plaintiff who seeks to bring suit? If statutory standing is not explicitly provided in the text of a statute, a plaintiff challenging federal administrative action looks to Section 10(a) of the Administrative Procedure Act (“APA”), which provides that any “person ... adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. Under the APA, a “ ‘person’ includes an individual, partnership, corporation, association, or public or private organization other than an agency.” 5 U.S.C. § 551(2). Interpreting the APA, the Supreme Court in Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), held that anyone “arguably within the zone of interests” protected by the statute under which he or she has asserted injury has standing to bring suit under that statute. The Court has instructed that the “zone of interests” test is to be construed generously, stating that the “test is not meant to be especially demanding,” and that a court should deny standing under the “zone of interest” test only “if the plaintiffs interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke v. Secs. Indus. Ass’n, 479 U.S. 388, 399, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987); see also Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1059 (9th Cir.2004); Ocean Advocates v. U.S. Army Corps of Eng’rs, 361 F.3d 1108, 1120-21 (9th Cir.2004). Specifically, “there need be no indication of congressional purpose to benefit the would-be plaintiff.” Graham v. Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1004 (9th Cir.1998) (citing Clarke, 479 U.S. at 399-400, 107 S.Ct. 750). As a municipal corporation, Sausalito qualifies as a “person” under Section 10(a) of the APA. To determine whether Sausalito is within the zone of interests of the statutes under which it brings suit, we look “to the substantive provisions of the [statutes], the alleged violations of which serve as the gravamen of the complaint.” Bennett v. Spear, 520 U.S. 154, 175, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). We are instructed by Clarke to understand these substantive provisions liberally. Thus, “APA plaintiffs need only show that their interests fall within the ‘general policy’ of the underlying statute, such that interpretations of the statute’s provisions or scope could directly affect them.” Graham, 149 F.3d at 1004 (quoting Nat’l Credit Union Admin, v. First Nat’l Bank and Trust Co., 522 U.S. 479, 487-88, 118 S.Ct. 927, 140 L.Ed.2d 1 (1998) (further citations omitted)). Defendants have objected to statutory standing for five of the statutes under which Sausalito seeks to bring suit. Those statutes are the Coastal Zone Management Act, the Marine Mammal Protection Act, the Migratory Bird Treaty Act, the Concessions Management Improvement Act, and the 1996 Omnibus Parks and Public Lands Management Act. We address these statutes in turn, and conclude that Sausali-to has standing under each of them. 1. Coastal Zone Management Act The purpose of the Coastal Zone Management Act (“CZMA”) is to “preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation’s coastal zone for this and succeeding generations.” 16 U.S.C. § 1452(1). To accomplish these ends, the CZMA encourages the states to draw up “management plans” for their coastal zones and requires that “[e]ach Federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs.” Id. § 1456(c)(1)(A). A federal agency ensures consistency of its proposed actions with state management programs by submitting a “consistency determination to the relevant State agency.” Id. § 1456(c)(1)(C); see also 15 C.F.R. § 930.36. After receipt of the consistency determination, the “State agency shall inform the Federal agency of its concurrence with or objection to the Federal agency’s consistency determination.” 15 C.F.R. § 930.41. Sausalito contends that the Park Service violated the CZMA because the Fort Baker Plan is not “consistent to the maximum extent practicable” with the approved state management program for the San Francisco Bay. 16 U.S.C. § 1456(c)(1)(A). The district court denied standing under the CZMA, holding that the CZMA’s “zone of interests” extends only to “a state’s protection of their [sic] coastal zones, but not to a local entity’s quarrel with the state agency’s conclusion.... ” City of Sausalito, 211 F.Supp.2d at 1187. We disagree. It is true that local governments like the City of Sausalito are not charged with making or concurring in consistency determinations under the CZMA. But this does not mean that they do not have standing to challenge determinations made by others. If the only parties that could challenge a consistency determination were the agencies that had already made or concurred in that determination, there would effectively be no judicial review of CZMA compliance. There is no indication that the CZMA was intended by Congress to insulate from judicial review the actions of the agencies required to comply with the statute. We have, in the past, allowed parties other than those charged with making or concurring in a consistency determination to bring suit under the CZMA. See, e.g., Akiak Native Cmty. v. U.S. Postal Serv., 213 F.3d 1140, 1144-46 (9th Cir.2000) (reviewing CZMA claims brought by Alaska Native communities); Northwest Envtl. Def. Ctr. v. Brennen, 958 F.2d 930, 936-37 (9th Cir.1992) (reviewing CZMA claims brought by environmental organizations). We hold that adversely affected local governments are within the “zone of interests” of the CZMA, as parties “adversely affected or aggrieved” by an improper consistency determination, and that Sausalito therefore has standing. 5 U.S.C. § 702; see Clarke, 479 U.S. at 399, 107 S.Ct. 750. The CZMA explicitly states that it is “national policy” to “encourage the participation and cooperation of the public, state and local governments ... in carrying out the purposes of [the statute].” 16 U.S.C. § 1452(4) (emphasis added); see also id. § 1452(5) (It is “national policy” to “encourage coordination and cooperation with and among the appropriate Federal, State, and local agencies ....”) (emphasis added). Further, we have previously indicated in dictum our view that local governments have standing to sue under the CZMA. In California v. Watt, 683 F.2d 1253 (9th Cir.1982), rov’d on other grounds sub nom., Sec’y of the Interior v. California, 464 U.S. 312, 104 S.Ct. 656, 78 L.Ed.2d 496 (1984), we analyzed whether certain environmental groups had standing under the CZMA. We observed, “The CZMA issues the environmental groups sought to raise were identical to those raised by the State of California and the local governments, parties who clearly had standing.” Id. at 1271 (emphasis added). In Watt, we thus assumed without discussion that local governments could bring suit under the CZMA. As a local government that has asserted injury to the ecological health and attractiveness of its marina and shoreline, and consequent injury to its “proprietary interests,” Sausalito has adequately asserted that it comes within the “zone of interests” of the CZMA. See also City and County of San Francisco v. United States, 443 F.Supp. 1116, 1128 (N.D. Cal.1977) (San Francisco had standing under CZMA because “alleged injury affect[ed] the City’s interest in protecting the environmental integrity of those portions of the San Francisco Bay under its control and insuring the most effective use and management of this resource.”). 2. Marine Mammal Protection Act The Marine Mammal Protection Act (“MMPA”) prohibits “taking” a marine mammal without a permit. 16 U.S.C. §§ 1372, 1374. The statute defines “taking” as harassing, hunting, capturing, or killing a marine mammal, as well as attempting to do so. Id. § 1362(13), (18); 50 C.F.R. § 216.3. Sausalito contends that implementation of the Fort Baker Plan will cause the “taking” of sea lions and harbor seals under the MMPA, and that a permit is therefore required. The FEIS makes clear that the Park Service has not applied, and does not intend to apply, for a permit. Sausalito argues that it is explicitly granted standing under Section 104(d)(6) of the MMPA, which provides: “Any applicant for a permit, or any party opposed to such permit, may obtain judicial review of the terms and conditions of any permit issued by the Secretary under this section or of his refusal to issue such a permit.” 16 U.S.C. § 1374(d)(6). We held in Jones v. Gordon, 792 F.2d 821, 824-25 (9th Cir. 1986), that Section 104(d)(6) provides for judicial review of permits already issued and of the Secretary’s refusal to issue permits. However, Sausalito challenges neither the substantive terms of an already issued permit nor the refusal to issue a permit. Rather, it challenges the Park Service’s refusal to seek a permit at all. Sausalito’s challenge therefore does not come within the explicit grant of standing under Section 104(d)(6). Nonetheless, if Sausalito comes within the “zone of interests” of the MMPA, it has standing to seek an injunction requiring that a permit be obtained, or, in the absence of a permit, forbidding an activity that constitutes a “taking” of a marine mammal. The MMPA is intended to protect marine mammals so that they continue “to be a significant functioning element in the ecosystem of which they are a part.” 16 U.S.C. § 1361(2). According to the MMPA: [MJarine mammals have proven themselves to be resources of great international significance, esthetic and recreational as well as economic, and it is the sense of the Congress that they should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management and that the primary objective of their management should be to maintain the health and stability of the marine ecosystem. Whenever consistent with this primary objective, it should be the goal to obtain an optimum sustainable population keeping in mind the carrying capacity of the habitat. Id. § 1361(6). Marine mammal conservation is thus the goal of the MMPA, and the statute explicitly recognizes that such conservation is a worthy objective because of “esthetic and recreational as well as economic” concerns. Implementation of the MMPA would be severely hampered if affected parties with conservationist, aesthetic, recreational, or economic interests in marine mammal protection were not allowed to bring suits challenging failures to apply for required permits. We believe that under the most reasonable interpretation of the “zone of interests” test, as liberally construed by the Court in Clarke, standing is granted to any party who would be “adversely affected or aggrieved” by the failure of a party to procure a permit that is required under the MMPA. 5 U.S.C. § 702; see Clarke, 479 U.S. at 399, 107 S.Ct. 750. The FEIS for the Fort Baker Plan states that construction and increased use of the waterfront area of Fort Baker will result in marine mammals making “less frequent use of the area.” Because Sau-salito has asserted aesthetic, recreational, and economic interests tied to the presence of marine mammals in the water and along its shoreline, it is “adversely affected or aggrieved” by the failure of the Park Service to seek an MMPA permit. 5 U.S.C. § 702; see Clarke, 479 U.S. at 399, 107 S.Ct. 750. We therefore hold that Sausalito has standing to sue to require the Park Service to apply for an MMPA permit before implementing the Fort Baker Plan. 3. Migratory Bird Treaty Act The Migratory Bird Treaty Act (“MBTA”) protects migratory birds. Its stated purpose is “to aid in the restoration of such birds in those parts of the United States adapted thereto where the same have become scarce or extinct, and also to regulate the introduction of American or foreign birds or animals in localities where they have not heretofore existed.” 16 U.S.C. § 701. The MBTA specifically forbids pursuing, hunting, taking, capturing, killing, or attempting to take, capture or kill migratory birds without authorization from the Secretary of the Interior. Id. §§ 703, 704; 50 C.F.R. § 21.27. Sausalito contends that implementation of the Fort Baker Plan — specifically, construction activities, tree removal, and increased visitor usage — “may result in the foreseeable deaths of migratory birds” and may thereby violate the MBTA. It is clear from the FEIS that the Park Service has not sought, and does not intend to seek, authorization from the Secretary. On its face, the MBTA is a criminal statute. See id. §§ 706, 707(a)-(d). The statute does not specifically authorize civil injunctive suits, and it says nothing about who has standing to bring such a suit. However, this court, the D.C. Circuit, and the Eighth Circuit have decided civil in-junctive suits brought under the MBTA by animal welfare or environmental organizations. See Seattle Audubon Soc’y v. Evans, 952 F.2d 297, 302-03 (9th Cir.1991); Humane Soc’y of the U.S. v. Glickman, 217 F.3d 882, 888 (D.C.Cir.2000); Newton County Wildlife Ass’n v. U.S. Forest Serv., 113 F.3d 110, 114-15 (8th Cir.1997). Although the necessary implication of these decisions is that a civil injunctive suit is authorized under the MBTA, and that the plaintiff organizations had standing to bring the suits, neither question was discussed in the opinions. We are bound to follow the implicit, but necessary, holding of our decision in Se attle Audubon Society. We therefore hold that anyone who is “adversely affected or aggrieved” by an agency action alleged to have violated the MBTA has standing to seek judicial review of that action. 5 U.S.C. § 702; see Clarke, 479 U.S. at 399, 107 S.Ct. 750. Because Sausalito asserts an interest in its ecological health and aesthetic appeal, a component of which is the presence of migratory birds, we hold that Sausalito has standing to challenge the Park Service’s proposed action under the MBTA. 4. Concessions Management Improvement Act The National Park Service Concessions Management Improvement Act, 16 U.S.C. § 5951 et seq. (“CMIA”), governs the award and administration of these concession contracts and “establish[es] a ... comprehensive concession management program for national parks.” Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 806, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). “To make visits to national parks more enjoyable for the public, Congress authorized [the Park Service] to grant privileges, leases, and permits for the use of land for the accommodation of visitors. Such privileges, leases, and permits have become embodied in national parks concession contracts.” Id. at 805-06, 123 S.Ct. 2026 (internal quotations and citation omitted). In enacting the CMIA, Congress found: that the preservation and conservation of park resources and values requires that such public accommodations, facilities, and services as have to be provided within such units should be provided only under carefully controlled safeguards against unregulated and indiscriminate use, so that— (1) visitation will not unduly impair these resources and values; and (2) development of public accommodations, facilities, and services within such units can best be limited to locations that are consistent to the highest practicable degree with the preservation and conservation of the resources and values of such units. 16 U.S.C. § 5951(a). Further, Congress declared that it is congressional policy: that the development of public accommodations, facilities, and services in units of the National Park System shall be limited to those accommodations, facilities, and services that — • (1) are necessary and appropriate for public use and enjoyment of the unit of the National Park System in which they are located; and (2) are consistent to the highest practicable degree with the preservation and conservation of the resources and values of the unit. Id. § 5951(b). Sausalito contends that the conference center proposed for Fort Baker will bring development and commercialization that will impair Fort Baker’s natural resources and harm Sausalito through increased congestion. We do not require that Sausalito be a potential concessioner to have standing under the CMIA. It is sufficient that Sausalito assert injury to its “proprietary interest” that would result if the public accommodations, facilities, and services are constructed or provided in a manner Sau-salito contends is inconsistent with the CMIA. Cf. Wilderness Pub. Rights Fund v. Kleppe, 608 F.2d 1250 (9th Cir.1979) (resolving on the merits a suit by non-concessioner plaintiff brought under the federal statute superceded by the CMIA, Concessions Policy Act, formerly at 16 U.S.C. §§ 20-20g). As a party “adversely affected or aggrieved” by a concession that potentially violates the congressional policies underlying the CMIA, Sausalito is within the statute’s “zone of interests.” 5 U.S.C. § 702; see Clarke, 479 U.S. at 399, 107 S.Ct. 750; cf. Glacier Park Found. v. Watt, 663 F.2d 882, 885 (9th Cir.1981) (plaintiff has standing under Concessions Policy Act because, inter alia, “its esthetic interests in preservation of the historical nature of Glacier Park are within the zone of interests protected by the statute.”). The Park Service contends that Sausali-to is not within the CMIA’s zone of interests because the CMIA does not regulate “the type of long-term lease for the retreat and conference center envisioned in the Fort Baker plan,” but this contention is unavailing. The regulations implementing the CMIA define a “concession contract” as a “binding written agreement between the Director and a concessioner entered under the authority of this part ... that authorizes the concessioner to provide certain visitor services within a park area under specified terms and conditions.” 36 C.F.R. § 51.3. The FEIS states that “[t]he conference and retreat center operator would be selected under existing [Park Service] authorities that provide for long-term agreements for rehabilitation and operation of park buildings.” The Park Service offers nothing to support its contention that the operation of the conference center, as described in the FEIS, does not qualify as a concession governed by the CMIA. 5. Omnibus Parks and Public Lands Management Act of 1996 Under the Omnibus Parks and Public Lands Management Act of 1996 (“Omnibus Act”), the Secretary of the Interior “is authorized where necessary and justified to make available employee housing, on or off the lands under the administrative jurisdiction of the [Park Service], and to rent or lease such housing to field employees of the [Park Service].... ” 16 U.S.C. § 17o(2). Such authorization is intended, inter alia, to help “eliminate unnecessary Government housing and [to] locate such housing as is required in a manner such that primary resource values are not impaired.” Id. § 17o(l)(E). The Omnibus Act directs that “[t]he Secretary may not utilize any lands for the purposes of providing field employee housing under this section which will impact primary resource values of the area or adversely affect the mission of the agency.” Id. § 17o(17)(A). Sausalito contends that the Fort Baker Plan violates section 17o(17)(A) of the Omnibus Act because the on-site housing of concession employees at the conference center will impair Fort Baker’s “primary resource values” of “scenic beauty and natural character.” Sausalito has asserted injury based on increased congestion and traffic caused, inter alia, by on-site employees’ trips into Sausalito. As “a party adversely affected or aggrieved” by on-site housing that potentially violates the policies Congress sought to further through the Omnibus Act, Sausalito is within the statute’s “zone of interests.” III. Statutory Duties We have thus held, or Defendants have conceded, that Sausalito has standing to sue under all the statutes it seeks to enforce. We now turn to the question of whether Defendants have violated, or will violate, the duties proscribed by those statutes. A. Standard of Review Because the statutes under which Sausalito seeks to challenge administrative action do not contain separate provisions for judicial review, our review is governed by the APA. See, e.g., Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 573 (9th Cir.1998) (review under the National Environmental Protection Act); Ariz. Cattle Growers’ Ass’n v. U.S. Fish and Wildlife, 273 F.3d 1229, 1235-36 (9th Cir.2001) (review under the Endangered Species Act); Akiak, 213 F.3d at 1144 (review under the CZMA); Hill v. Norton, 275 F.3d 98, 103 (D.C.Cir.2001) (review under the MBTA); Ocean Advocates, 361 F.3d at 1118 (review under the MMPA). We will reverse agency action only if it is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 471 (9th Cir.2000). An agency’s action is arbitrary and capricious if: 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. Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). While we must be “searching and careful” in our inquiry, Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (internal quotations and citations omitted), we may not substitute our own judgment for that of the agency. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). We “must uphold agency decisions so long as the agencies have ‘considered the relevant factors and articulated a rational connection between the factors found and the choices made.’ ” Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 953-54 (9th Cir. 2003) (quoting Washington Crab Prods., Inc. v. Mosbacher, 924 F.2d 1438, 1441 (9th Cir.1990) (further internal citations omitted)). Where “a court reviews an agency action involvpng] primarily issues of fact, and where analysis of the relevant documents requires a high level of technical expertise, we must defer to the informed discretion of the responsible federal agencies.” Sierra Club v. U.S. EPA, 346 F.3d 955, 961 (9th Cir.2003), amended by 352 F.3d 1186 (9th Cir.2003) (internal quotations and citation omitted); see also Ariz. Cattle, 273 F.3d at 1236 (“We are deferential to the agency’s expertise in situations ... where ‘resolution of the dispute involves primarily issues of fact.’ ”) (quoting Marsh, 490 U.S. at 377-78, 109 S.Ct. 1851); Selkirk, 336 F.3d at 954 (“Disputes involving ‘primarily issues of fact’ must be resolved in favor of the expert agency so long as the agency’s decision is based on a reasoned evaluation of the relevant factors.”) (quoting Marsh, 490 U.S. at 377-78, 109 S.Ct. 1851). B. National Environmental Policy Act The National Environmental Policy Act (“NEPA”) requires that an environmental impact statement be prepared for “major Federal actions significantly affecting the quality of the human environment....” 42 U.S.C. § 4332(2)(C). The EIS should “provide full and fair discussion of significant environmental impacts and shall inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.” 40 C.F.R. § 1502.1. Our review of an EIS is limited to a “rule of reason that asks whether an EIS contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences.” Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir.1992) (internal citations and quotations omitted). The key-question is whether the EIS’s “form, content and preparation foster both informed decisionmaking and informal public participation.” Id. (internal citations and quotations omitted). If we are “satisfied that a proposing agency has taken a ‘hard look’ at a decision’s environmental consequences, the review is at an end.” Id. (internal citations and quotations omitted). Sausalito challenges the FEIS for the Fort Baker Plan in several respects. First, Sausalito contends that the FEIS fails to consider reasonable alternatives to the Plan. Second, it contends that the FEIS fails to consider the impacts of the Plan on traffic. Third, it contends that the FEIS fails to consider the “commercialization precedent” that implementation of the Plan will allegedly create. Fourth, it contends that the FEIS does not adequately discuss the effects of the Plan on wildlife. Fifth, it contends that the FEIS “fails to support its conclusion with scientific evidence.” Finally, it contends that the FEIS does not sufficiently disclose and discuss the cost-benefit analyses that the Park Service may have performed. We address these contentions in turn. We conclude, as to all of them, that the Park Service has taken the requisite “hard look.” 1. Alternatives NEPA provides that federal agencies must, to the fullest extent possible, “[s]tudy, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” 42 U.S.C. § 4832(2)(E). The alternatives section is “the heart of the environmental impact statement.” 40 C.F.R. § 1502.14. The EIS, however, “need not consider an infinite range of alternatives, only reasonable or feasible ones.” City of Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1155 (9th Cir.1997); 40 C.F.R. § 1502.14(a)-(c). The rule of reason “guides both the choice of alternatives as well as the extent to which the[EIS] must discuss each alternative.” Carmel, 123 F.3d at 1155. “ ‘[F]or alternatives which were eliminated from detailed study, [the EIS must] briefly discuss the reasons for their having been eliminated.’ ” Am. Rivers v. FERC, 201 F.3d 1186, 1200 (9th Cir.2000) (quoting 40 C.F.R. § 1502.14(a) (emphasis added by the court)). The FEIS identifies and considers in detail four alternatives: (1) the Fort Baker Plan; (2) the “GMP Alternative”; (3) the “Office and Cultural Center Alternative”; and (4) “the No-Action Alternative.” During scoping and initial planning, the Park Service considered other alternatives that -were “initially thought to be viable or were suggested by the public,” but were not developed in further detail “because they were determined to be infeasible or did not fit within the Purpose and Need for the project.” The Park Service initially considered, but then rejected, a “maximum natural resource restoration” alternative. Other rejected alternatives discussed in the FEIS include use of the site as a charter or independent school, as a university campus, as a lodging facility, as an arts and education center, as a residential youth academy of environmental science and art, and as a fully operating military post. Sausalito contends that the Park Service should have identified and analyzed in detail more than the four alternatives considered. in the FEIS. Specifically, Sausalito contends that the FEIS should have evaluated in more detail alternatives that would have maximized natural resource restoration and that would have developed “noncommercial,” “low-impact,” or “non-urbanized” uses for the site. Sausalito’s strongest argument is that the Park Service should have explored the possibility of congressional funding for the refurbishment of Fort Baker so that revenue generation at the site would not be needed. Sausalito contends that if congressional funding had been obtained, the conference center would not have been an essential part of the Plan, and the alternatives Sausalito favors would have been feasible. As an initial matter, the Park Service contends that because Sausalito did not raise its concern about funding during public comments and in its many exchanges with the Park Service, it has not satisfied our requirement that those who challenge an EIS “bear a responsibility to structure their participation so that it is meaningful, so that it alerts the agency to the [parties’] position and contentions.” City of Angoon v. Hodel, 803 F.2d 1016, 1022 (9th Cir.1986) (internal quotation and citation omitted); cf. Morongo Band, 161 F.3d at 576 (implying that “the burden is on the party challenging the agency action to offer feasible alternatives.”). A party has participated in a sufficiently meaningful way when it has alerted the agency to its position and claims. See Angoon, 803 F.2d at 1022. Sausalito adequately made its concerns about funding at Fort Baker known to the Park Service throughout the public review and comment process. For example, in April 1999, Sausalito’s mayor wrote to Golden Gate National Recreation Area Superintendent Brian O’Neill: “[W]e cannot stress enough the desire of our City to have this project reduced to an appropriate scale.... To this end, we urge the Park Service to seek new funding, if necessary, to supplement the cost of rehabilitar tion in order to reduce the scope of the project.” (Emphasis added.) Similarly, in December 1999, Sausalito’s mayor wrote to Regional Park Service Director John Reynolds expressing concern that while the reason the preferred alternative was selected was that it provides the economic wherewithal to support the needed improvements to historic buildings!,] [n]o other alternative for preservation of the buildings and/or reducing the costs of that effort was considered. Other possibilities include seeking multiple philanthropic entities to each sponsor one historic building for renovation and maintenance with selected options as to the building’s use. Such an alternative would minimize the size of, if not eliminate the need for, the retreat center. The Park Service was thus clearly alerted to Sausalito’s concerns that the Park Service’s pursuit of funding had been too limited. In the past we have cautioned that “even if an alternative requires ‘legislative action!,]’ this fact ‘does not automatically justify excluding it from an EIS.’” Methow Valley Citizens Council v. Reg. Forester, 833 F.2d 810, 815 (9th Cir.1987), overruled on other grounds by Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (quoting City of Angoon, 803 F.2d at 1021); see also Kilroy v. Ruckelshaus, 738 F.2d 1448, 1454 (9th Cir.1984) (“In some cases an alternative may be reasonable, and therefore required by NEPA to be discussed in the EIS, even though it requires legislative action to put it into effect.”). However, we have also noted that”[i]f an alternative requires congressional action, it will qualify for inclusion in an EIS only in very rare circumstances.” City of Angoon, 803 F.2d at 1022 n. 2. We identified one of these “very rare” circumstances in Muckleshoot Indian Tribe v. United States Forest Service, 177 F.3d 800 (9th Cir.1999). There we held that an EIS prepared by the Forest Service should have considered the alternative of requesting funds from the Federal Land and Water Conservation Fund, even though such funds might not have been available. See id. at 814. We noted that the alternative actually selected by the Forest Service in the EIS explicitly and frequently relied upon other “admittedly speculative funds” for financing, and we were “troubled by this selective willingness to rely upon the availability of funding sources beyond the Forest Service’s direct control.” Id. In this circumstance, we concluded that it would have been reasonable to consider seeking federal funds as an alternative. In assessing whether we confront another of those “very rare circumstances” here, we must understand the context in which the Park Service dealt with funding limitations. It is clear from the record that the lack of congressional funding available for rehabilitation of the historic structures at Fort Baker was a central concern of the Park Service throughout the development of the Fort Baker Plan. It is also clear from the administrative record that the lack of congressional funding was not merely “speculative.” Acting Park Service Superintendent B.J. Griffith explained the Park Service’s efforts at procuring congressional funds to Sausalito’s mayor in April 1999: During the planning effort for Fort Baker, we have pursued various funding sources to address this preservation challenge and ensure a smooth transition from military post to national park. We have presented our needs through Park Service budgeting channels, to relevant congressional committees, and to the Army in light of their responsibilities for current building maintenance and environmental clean-up. We have hosted the entire Congressional Subcommittee on Interior Appropriations at the site. We have discussed the project with the philanthropic community. While each of these groups is supportive of the conversion from military post to national park, and will contribute in some way to its realization, the majority of the preservation funds must come through the re-use concept itself. In our minds, the retreat and conference facility is the best avenue to achieve our primary goals: preservation of the site and public access. (Emphasis added.) Griffith reiterated these points one month later, stating, ‘With regard to funding opportunities for long-term rehabilitation and maintenance of the buildings at Fort Baker, Congress has made it clear that new uses will need to provide funds for this purpose.” The Park Service’s assessment of the limitations of congressional funding was discussed openly throughout the planning process. After scoping had closed in October 1997, Chief Park Service Planner for Fort Baker Nancy Hornor briefed a citizens’ advisory committee. She stated, “Financial sustainability was one of the important criteria for the site, [b]ecause we are not really anticipating that we are going to get a big influx of federal dollars to pay for the high cost of rehabilitating both the buildings and the infrastructure on the site.” In September 1998, before the same citizens’ group, Park Service Project Manager Ron Golem identified “the need for outside funding” as one of the “guiding principles for the implementation of this plan.” He explained: Particularly when we talk about building rehabilitation. We are going to be looking to the lessee of the conference and retreat center to really bring in the financing that is going to accomplish the rehabilitation of the historic resources. We are going to be looking to private philanthropy to hopefully contribute towards the open space and site improvements .... And really what we are going to be looking for Congress to do — and this is the feedback that we have gotten from them that this is how we should be doing it — is that there is a set of costs that we really can’t expect anybody else to take care of. And those are the costs that relate to the infrastructure, the basic utility systems, the roads. (Emphasis added.) The record also reflects the Park Service’s consistent attempts to work with members of Congress to secure whatever funding was available. Park Service mem-oranda indicate that as of March 1999, Congressman Jack Murtha was continuing his efforts “to secure military funding of the $12.5 million infrastructure requirement” and that various members of Congress, including members of the Military Construction Committee and the National Security Appropriations Subcommittee, had been “engaged” with respect to seeking funding. In July 1999, Congressman Ralph Regula, Chair of the Subcommittee on Interior and Related Agencies of the House Appropriations Committee, wrote to Superintendent O’Neill thanking him for “the briefings and information you provided to the subcommittee members regarding issues of importance to the park[.]” Regula specified that “[t]he subcommittee members seemed very excited about the potential for Fort Baker and we were, of course, please[d] to hear that Jack Murtha would pursue the $12 million needed for infrastructure repairs in the Defense bill.” However, Regula cautioned, “As you know, our Interior bill allocation fell $200 million below the enacted level and we are limiting new projects so that we can make a serious dent in backlog maintenance needs of the parks.” In 1999, the Park Service succeeded in procuring some funds from Congress when the Department of Defense’s Appropriations Bill contained five million dollars for infrastructure repair at Fort Baker. In 2000, the House Appropriations Committee approved another six million dollars for infrastructure improvements at Fort Baker. The record thus indicates that Park Service planners kept abreast of possible congressional funding sources, were well-informed as to the limitations of these sources, and were, on occasion, successful in obtaining funding. That the Park Service’s efforts were focused on appropriations that covered infrastructural improvements, and not on appropriations that would have indefinitely sustained the site, does not indicate that the Park Service did not diligently pursue congressional funding. On the contrary, as is made clear from Griffin’s and Golem’s comments, as well as other information in the record, the Park Service’s focus resulted from an informed understanding of Congress’s willingness to fund Fort Baker’s rehabilitation and a strategic choice about how best to secure whatever funding might be available. It was thus reasonable for the FEIS not to have explored in detail the “alternative” of additional congressional funding beyond what the Park Service had already secured. Sausalito may wish that Congress had been more receptive to the Park Service’s requests or that the Park Service could have devised a different and more effective strategy in seeking congressional funding. But this desire alone does not require us to conclude that the FEIS is inadequate. We therefore do not confront one of those “very rare circumstances” where an EIS is inadequate for not including the “alternative” of seeking federal funds. 2. Traffic Impact The FEIS states, “During scoping, the most frequently voiced concerns were the potential impacts on traffic and parking demand resulting from new building uses and site improvements.” In response, as the district court noted, the FEIS contains a detailed, fifteen-page analysis of traffic concerns describing the methods used to study traffic, and the Plan’s impact on parking and traffic. Further, the Fort Baker Plan specifically provides for ongoing traffic monitoring and a “Traffic Management Plan” to set “specifications on construction traffic scheduling, proposed haul routes, construction parking, staging area management, visitor safety, detour routes, and speed controls (including those addressed in [the section discussing] the [endangered] mission blue butterfly).” Finally, the FEIS. contemplates a “Transportation Demand Management Program” to address traffic and parking concerns, including providing a shuttle service and alternative modes of transportation to Fort Baker. These detailed discussions satisfy us that the Park Service took a “hard look” at the Plan’s traffic impacts and “foster[ed] informed decisionmaking and informed public participation” on this issue. Mumma, 956 F.2d at 1519 (citation omitted). 3. Commercialization Precedent The Council on Environmental Quality Guidelines (“Guidelines”), the regulations implementing NEPA, require that an EIS discuss “[t]he degree to which the action may establish a precedent for future actions.” 40 C.F.R. § 1508.27(b)(6). The FEIS discusses in depth any “commercialization precedent” that would result from implementation of the Fort Baker Plan. It analyzes the Plan’s impact on regional community services and employment opportunities, including local hotels and expected visitor spending in the region. The Plan also discusses its consistency with relevant land-use plans, such as the Presidio General Management Plan, the San Francisco Bay Plan, the Marin Countywide Plan, and the Sausalito General Plan, each of which discusses the uses of land within its relevant boundaries. Finally, and critically, in its discussion of the “Growth-Inducing Impacts” of the Fort Baker Plan; the FEIS states: New employee households would create increased demands' for goods and services in areas surrounding their homes and throughout the Bay Area. Increased visitation at Fort Baker would increase the demand for lodging, restaurant, and other tourist-oriented services in surrounding areas, especially in Sausalito, Tiburón and San Francisco. This business growth, combined with other park improvements, would potentially increase demand for local hotels Infrastructure improvements would not encourage additional growth outside of Fort Baker because these improvements are only for onsite services. Planned traffic circulation and safety improvements would not increase the capacity of affected transportation networks beyond that needed to accommodate Fort Baker traffic and transit services. Therefore, additional indirect population and housing growth in other areas served by the same traffic network is not expected. These discussions satisfy the Guidelines’ direction to consider “the degree to which the action may establish a precedent for future actions with significant effects.” 40 C.F.R. § 1508.27(b)(6). By providing information about the likely community and commercial impacts of the Plan on the regional economy, as well as placing these impacts in the context of regional land-use plans, the Park Service has taken the requisite “hard look” at this issue and provides the information necessary to make an “informed decision” about the “commercialization precedent” that may be established by the Fort Baker Plan. Mumma, 956 F.2d at 1519. 4. Impact on Wildlife The FEIS discloses that “[construction activities at the fishing pier and marina could temporarily disrupt marine animals, including harbor seals, California sea lions, and feeding, resting and nesting waterbirds and seabirds, in the proximity of work sites and in the water. However, there would be no long-term adverse impact on marine species due to construction activities in these areas.” The FEIS also states that “[i]nereased recreational boating in the area and use of the boat ramp might disrupt marine mammals, and wintering water birds that congregate in the area.” As mitigation, the FEIS provides that “[designation of appropriate recreational uses, interpretive signage and materials informing boaters and other visitors of appropriate actions to prevent disturbance, limitations on use areas and the boat ramp ... would avoid or mitigate visitor impacts.” Additionally, the FEIS provides for ongoing monitoring of marine mammals to “verify [the] effectiveness of mitigation and/or identify needs for any additional management actions.” With respect to migratory birds, the FEIS states: Several species of migratory birds nest at Fort Baker. Most nest in oak woodlands or the grassland/coastal scrub areas; however, cliff swallows (Hirundo pyrrhonota) nest on the buildings at Fort Baker. This species can be seen in the spring building nests, and young are fledged by late summer. All of these birds are protected by the Migratory Bird Treaty Act. The FEIS also states that brown pelicans and least terns “are often seen in Horseshoe Bay and offshore in the bay.” The FEIS states that while they do not have nesting sites at Fort Baker, American peregrine falcons and bald eagles are seen “occasionally flying over the bay.” As mitigation, the FEIS provides: Any removal (including mowing and tree trimming) of landscaped nonnative or native vegetation would follow park guidelines for protection Pf nesting birds. These guidelines include restrictions on timing of vegetation removal, requirements for searching for active nests prior to removal, and maintaining mowed areas at low height to discourage nesting. Restrictions would also apply to cliff swallow nests on buildings. Bird exclusion measures, such as temporary netting, would also be considered for implementation prior to the start of nesting season. Such actions would be considered on a case-by-case basis by the [Park Service]. The FEIS’s discussion of salmonids, including mitigation measures, is described, infra, as part of our analysis of the Park Service’s compliance with the Endangered Species Act. Although discussion of the effects on specific species is not particularly detailed in the FEIS, we conclude from the description of adverse impacts and, in particular, of the mitigation measures, that the Park Service took a “hard look” at the wildlife impacts, and that the FEIS came to a reasonable conclusion that the Fort Baker Plan would not have a significant impact on these populations. In Edwardsen v. United States Department of the Interior, 268 F.3d 781, 790 (9th Cir.2001), we pointed to the inclusion of mitigation within an EIS as an important element in evaluating the reasonableness of the EIS’s conclusions on wildlife. See also Selkirk, 336 F.3d at 954 (noting that if mitigation measures are “in place, then the reviewing agencies ought to consider [them] when evaluating the impact of the proposed actions”). Here, the discussion of possible adverse impacts, combined with the mitigation discussion, convinces üs that the Park Service took a hard look at the Plan’s impacts on wildlife. 5. Methodologies and Sources Used The Guidelines direct agencies to “insure the professional integrity, including scientific integrity, of the discussions and analyses in [an EIS].” 40 C.F.R. § 1502.24. This direction includes a requirement that methodologies and scientific sources be disclosed. Id. The FEIS identifies the following methodologies employed in predicting biological impacts: [1] Completion of a literature review and consultation with experts on vegetation and wildlife at Fort Baker. [2] Identification and mapping of existing plant communities using aerial photography and ground truthing surveys. [3] Identification of wildlife species based on the use of the California Wildlife Habitat Relationship Model and an evaluation of lists of special status species provided by the[United States Fish and Wildlife Service] and the [National Marine Fisheries Service]. [4] Mapping of important natural values within the site or resources which would be potentially affected by the development and use of the site. [5] Field observations regarding special status species identified by the [United States Fish and Wildlife Service] and [National Marine Fisheries Service], bird use of open water in Horseshoe Bay, and marine biological resources in area of impact related to removal of bulkhead. (Bracketed numbers added.) The FEIS goes on to identify six criteria used to assess the degree of impact. The FEIS states that its analysis of the Plan’s impacts on biological resources at Fort Baker relied on two specific sources: “Fort Baker Natural Resources Inventory,” prepared in 1998 by EDAW, Inc.; and “Assessment of Baseline Vegetation Conditions and Habitat Restoration Potential at East Fort Baker, Golden Gate National Recreation Area,” prepared in 1998 by May Consulting Services. In a similar fashion, the FEIS details the methodologies and specific sources used to assess the Plan’s impacts on Fort Baker’s cultural resources, traffic and circulation, air quality, land use and community services, and visual and aesthetic resources. The FEIS thus clearly indicates the methodologies and sources used to evaluate the Plan’s impacts. Sausalito nevertheless contends that the FEIS “fails to support its conclusions with scientific evidence.” For example, Sausali-to contends that the FEIS does not provide support for its conclusions about the Plan’s impacts on wildlife in Horseshoe Bay and migratory birds. However, the “Biological Resources” section of the FEIS, in which the impacts of the Plan are discussed, details the methodologies and sources for predicting biological impacts listed above. The FEIS specifically refers to “[f]ield observations regarding special status species identified by [the United States Fish and Wildlife Service] and [the National Marine Fisheries Service], bird use of open water in Horseshoe Bay, and marine biological resources in area of impact related to removal of bulkhead.” Sausalito further contends that the FEIS is inadequate because it fails to make available the biological opinions upon which -the FEIS is based. We have held “that NEPA requires that the public receive the underlying environmental data from which [an] ... expert derived her opinion.” Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1150 (9th Cir. 1998). This does not mean, however, that an EIS cannot provide such data by incorporating a document by reference, as was done with the biological opinions here. The Guidelines specifically allow for incorporation by reference and instruct agencies to use this method “when the effect will be to cut down on bulk without impeding agency and public review of the action.” 40 C.F.R. § 1502.21. Material may not be incorporated by reference when “it is [not] reasonably available for inspection by potentially interested persons” or when it consists of “[m]aterial based on proprietary data which is itself not available for review and comment[.]” Id. Sausalito does not contend that the biological opinions at issue were not available for inspection by interested persons or that they consisted of proprietary data not available for review. We therefore conclude that the FEIS adequately reveals the methodologies and scientific sources upon which it relies. 6. Failure to Include Cost-Benefit Analysis The Guidelines require that “[i]f a cost-benefit analysis relevant to the choice among environmentally different alternatives is being considered for the proposed action,” the analysis “shall be incorporated by reference or appended to the [EIS] as an aid in evaluating the environmental consequences.” 40 C.F.R. § 1502.23. “For purposes of complying with [NEPA],” the Guidelines require that “an environmental impact statement should at least indicate those considerations, including factors not related to environmental quality, which are likely to be relevant and important to a decision.” Id. Sausalito contends that the Park Service used cost-benefit analyses to choose among environmentally different alternatives, but did not comply with the Guidelines’ disclosure requirements for such analyses. The Park Service contends that the documents at issue are not “cost-benefit analyses,” but are instead properly understood as “pro formas” that were “prepared and used by the [the Park Service] for [the] very narrow purpose [of testing] the viability of the retreat and conference center from the operator/developer’s perspective.” While the Guidelines do not provide a specific definition of “cost-benefit analysis,” they make clear that such an analysis may be informal. The Guidelines direct, “For purposes of complying with [NEPA], the weighing of the merits and drawbacks of the various alternatives need not be displayed in a monetary cost-benefit analysis and should not be when there are important qualitative considerations.” Id.; see also Sierra Club v. Sigler, 695 F.2d 957, 976 n. 15 (5th Cir.1983). A “cost-benefit” analysis under the Guidelines consists of any analysis identifying and assessing the comparative benefits and/or costs of “environmentally different alternatives.” 40 C.F.R. § 1502.23. To be subject to the Guidelines’ disclosure requirements, the analysis must be “relevant to the choice” between these alternatives. Id. The Guidelines conclude: “In any event, an environmental impact statement should at least indicate those considerations, including factors not related to environmental quality, which are likely to be relevant and important to a decision.” 40 C.F.R. § 1502.23. We disagree with the Park Service’s contention that it did not perform a “cost-benefit analysis.” The contested documents consist mostly of reports and letters prepared for the Park Service by the Sed-way Group (“Sedway”), a consulting firm specializing in real estate and urban economics. Sedway’s July 1997 confidential report entitled “Market and Economic Assessment of Fort Baker Reuse Opportunities” (“1997 Report”) explores “the market and economic viability of a broad range of reuse options at Fort Baker" and concludes that a conference center-rather than an arts, environmental, or recreational center-is the most viable option for the site. Park Service Planner Nancy Hornor was undoubtedly referring to the 1997 Report when she stated in July 1997 that Sedway worked with the Park Service "to develop criteria for selecting reuse options," and that "[b]ased on the data collection, cost estimates and selection criteria, the Sedway Group evaluated a wide range of ideas but narrowed the most economically viable options to three." By the Park Service's own description, the 1997 Report evaluated the cdmparative benefits-here based on market viability-of environmentally different options and helped to choose among them. Sedway's September 1998 letter ("1998 Letter") served a similar function. Using economic and market indicators, it analyzed and "summarized the potential economic impacts of the proposed Conference and Retreat Center at Fort Baker, in addition to the anchor uses of the other three, alternatives detailed in the Fort Baker EIS." Although neither the 1997 Report nor the 1998 Letter was formally incorporated into the FEIS, the considerations and "evaluative criteria used in the Report and the Letter were adequately revealed in the FEllS. The Report comparatively assessed the discussed alternatives for their "capacity to generate funds for the [Park Service's] infrastructure and site improvements." As Sausalito itself has made clear, the criterion of generating funds is considered throughout the FElTS. The 1998 Letter discussed alternatives that were comparatively assessed for their capacity to generate jobs, visitor spending, and regional hotel demand. These criteria are discussed in the FEIS's section on "Land Use and Community Services." We therefore hold that the FEIS's failure formally to incorporate or append these analyses does not violate NEPA. The other documents identified by Sausalito do not assess the comparative merits of environmentally different options. Rather, they explore the feasibility of only one element of the proposed action-the conference center itself. These documents are thus not cost-benefit analyses subject to the Guidelines' disclosure requirements, but are, as the Park Service described them, "pro formas" intended to help the Park Service understand in further detail the viability and parameters of a single option. C. Endangered Species Act The Endangered Species Act ("ESA") prohibits "taking" an endangered or threatened species, 16 U.S.C." § 1538(a)(1)(B), and requires the Secretary of the Interior to insure that any action authorized, funded, or carried out by such agency •.. is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined to be critical, unless such agency has been granted an "exemption.... Id. § 1536(a)(2). The ESA requires a consultation process among agencies. First, a federal agency proposing action that may result in a "taking" must ask the appropriate federal service-either the United States Fish and Wildlife Service ("Fish and Wildlife Service") or the National Marine Fisheries Service ("Fisheries Service")-whether a listed or proposed endangered or threatened species may be present in the area of the proposed action. Id. § 1536(c)(1). If the relevant service answers that such a species may be in the area, the agency proposing action must then conduct a “biological assessment for the purpose of identifying any endangered species or threatened species which is likely to be affected by such action.” Id. The assessment need not take any specific form, and the ESA specifically authorizes that “such assessment may be undertaken as part of a Federal agency’s compliance with the requirements of [conducting an EIS under NEPA].” Id. The ESA’s implementing regulations provide that the contents of the biological assessment can include, in the agency’s discretion, the results of on-site inspection, the views of experts, proposed alternate action, literature reviews, an analysis of the effects on the species, and incorporation of other assessments by reference. 50 C.F.R. § 402.12(f)(l)-(5). What is required is that a biological assessment “evaluate the potential effects of the action on listed and proposed species and designated and proposed critical habitat and determine whether any such species or habitat are likely to be adversely affected by the action.” Id. § 402.12(a). We will find a biological assessment inadequate only if the agency “entirely failed to consider an important aspect of the problem or to consider the relevant factors and articulate a rational connection between the facts found and the choice made.” Native Ecosystems Council v. Dombeck, 304 F.3d 886, 901 (9th Cir.2002) (internal quotations and citation omitted) (brackets omitted). If the agency proposing action determines, on the basis of the biological assessment, that its action “may affect” an endangered species, the agency must initiate the process of “formal consultation” with the appropriate service. 50 C.F.R. § 402.14(a). In this process, the agency must provide the service with “the best scientific and commercial data available or which can be obtained during the consultation.” Id. § 402.14(d). Formal consultation results in a “biological opinion” in which the service shall provide to the Federal agency ... a written statement setting forth the Secretary’s opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat. If jeopardy or adverse modification is found, the Secretary shall suggest those reasonable and prudent alternatives which he believes ... can be taken by the Federal agency.... 16 U.S.C. § 1536(b)(3)(A). The suggested alternatives “may not jeopardize the listed species or result in the destruction or adverse modification of its critical habitat.” Am. Rivers v. Nat’l Marine Fisheries, 126 F.3d 1118, 1122 (9th Cir.1997). In formulating the Fort Baker Plan, the Park Service consulted with both the Fish and Wildlife Service and the Fisheries Service. After receiving lists of species and habitats that may potentially be affected by the Fort Baker Plan, the Park Service prepared a biological assessment of. impacts to the listed species, which it included in the October 1998 draft EIS. The Fisheries Service informed the Park Service in October 1998 that it would concur in the Park Service’s determination that the Fort Baker Plan would not likely affect the listed species if the Park Service included certain mitigation measures in its proposed action. These mitigation measures were then incorporated into the FEIS. The Park Service concluded in its biological assessment that the Mission Blue Butterfly was the only species likely to be affected by the Plan, and requested formal consultation with the Fish and Wildlife Service on the Butterfly. Consultation ended in September 1999 when the Fish and Wildlife Service issued a biological opinion concluding that the Fort Baker Plan, including its mitigation measures, “is not likely to jeopardize the continued, existence of the mission blue butterfly.” Sausalito contends that an adequate biological assessment was not prepared with respect to the Fort Baker Plan’s effects on the Mission Blue Butterfly and the sal-monids listed in the FEIS. Sausalito also contends that the Park Service did not comply with the 180-day deadline for preparing a biological assessment. 1. Mission Blue Butterfly The Mission Blue Butterfly (“Butterfly”) is classified as an endangered species, and Fort Baker is one of its only remaining habitats. In 1995, a biological opinion (“1995 Opinion”) was prepared for the Golden Gate Bridge District as part of a seismic and wind retrofit of the Golden Gate Bridge. The north end of the Bridge abuts Fort Baker. The 1995 Opinion concluded that the Bridge retrofit was not likely to jeopardize the Butterfly’s continued existence, provided that restoration and preservation of Butterfly habitat in Fort Baker was undertaken as mitigation. The 1995 Opinion specified that any proposed change to its designated Butterfly habitat restoration sites at Fort Baker should be approved by the Fish and Wildlife Service. Sausalito contends that the Park Service failed to consider information contained in the 1995 Opinion in its biological assessment in connection with the Fort Baker Plan, and that the Fish and Wildlife Service failed to incorporate such information into its biological opinion. It further contends that neither the Park Service nor the Fish and Wildlife Service properly disclosed or considered an asserted conflict between the Fort Baker Plan and Butterfly habitat restoration required by the 1995 Opinion. We disagree with both contentions. The FEIS clearly acknowledges the mitigation requirements contained in the 1995 Opinion. It states that “[pjlanned restoration of [Butterfly] habitat as mitigation for the Golden Gate Bridge seismic retrofit work would continue to be implemented at Fort Baker,” and that the Park Service “conducts annual surveys for the butterfly, and both the [Park Service] and the [Bridge District] have been actively improving habitat at Fort Baker primarily through removal of invasive plants.” The FEIS provides the following mitigation for Butterfly habitat: Future restoration efforts [for Butterfly habitat] identified as part of the Proposed Action would expand on [the restoration undertaken pursuant to the 1995 Opinion], completing up to 23 acres of additional butterfly habitat restoration onsite. The [Park Service] would develop assurances that the [Butterfly] habitat restoration, enhancement, and maintenance takes place in a timely manner as proposed by ensuring that funding would be available for these efforts. The [Park Service] would provide a description of these assurances to the [Fish and Wildlife Service] for review and approval before November 1, 1999, consistent with the terms and conditions of the[Fish and Wildlife Service’s] Biological Opinion for the project (signed September 29,1999). Before January 1, 2005, the [Park Service] would review with the [the Fish and Wildlife Service] the status of Fort Baker Plan, the [Butterfly], and the success of the plan in minimizing impacts to the species. As a result of this review, [Fish and Wildlife Service] will consider the extension or reinitiation of the biological opinion. Among other things, the FEIS provides for further mitigation through a “protocol for monitoring visitor-associated impacts to the [Butterfly], its host plants and habitats.” The FEIS also provides for protections to the Butterfly during construction that include the presence of a “qualified biologist [who] would monitor construction activities ... and stop work if necessary to protect” the Butterfly. Finally, the FEIS provides for anti-poacher training and enforcement with respect to the Butterfly, the control of invasive non-native plants that threaten Butterfly habitat, and the restoration of Butterfly habitat in areas currently populated with non-native trees. Sausalito points to an internal memo, contained in the administrative record and written by a Park Service employee before release of the draft EIS, expressing concern that habitat restoration sites associated with the Bridge District’s mitigation activities would potentially conflict with elements of the Fort Baker Plan “that will likely be recommended by the [Plan] for uses other than habitat restoration.” The record reflects, however, that the Park Service ultimately concluded that there would not be such a conflict. The “Assessment of Baseline Vegetation Conditions and Habitat Restoration Potential at East Fort Baker,” which is included by reference in the FEIS and is a part of the Fish and Wildlife Service’s consultation record, states: Planned recreational improvement (e.g., development of visitor facilities, enlargement of the Discovery Museum, development of additional parking areas and trails) are located adjacent to areas known to support Mission blue butterfly, a federally listed endangered species. Although direct loss of habitat is not anticipated to result from construction of recreational facilities, project implementation is likely to result in secondary construction effects (e.g., dust, erosion) on surrounding plant communities, including communities that support host plants for the Mission blue butterfly. (Emphasis added.) On this record, we conclude that the Park Service and the Fish and Wildlife Service considered all the “relevant factors” and “important aspect[s] of the problem” with respect to the Butterfly. Native Ecosystems Council, 304 F.3d at 901. The need for restoration and preservation of Butterfly habitat both in general and in reference to the obligations of the Bridge District was adequately considered in assessing the effects of the Fort Baker Plan on the Butterfly. Further, Sausalito’s assertion of a conflict between the Fort Baker Plan and the Bridge District’s requirements is not borne out by the record. When “a court reviews an agency action involving primarily issues of fact, and where analysis of the relevant documents requires a high level of technical expertise, we must defer to the informed discretion of the responsible federal agencies.” Sierra Club, 346 F.3d at 961 (citation and internal quotations and brackets omitted); see also Ariz. Cattle, 273 F.3d at 1236 (“We are deferential to the agency’s expertise in situations, like that here, where resolution of this dispute involves primarily issues of fact.”) (internal quotations and citation omitted). It is clear that both the Park Service and the Fish and Wildlife Service used their “informed discretion” in concluding that the Fort Baker Plan will not encroach on Butterfly habitat or jeopardize the continued existence of the Butterfly. We defer to that informed discretion. Sierra Club, 346 F.3d at 961. 2. Salmonids Sausalito contends that the FEIS’s discussion of salmonids is inadequate to serve as a biological assessment under the ESA. The FEIS states that among the “sensitive and special status species known to or likely to occur at Fort Baker are ... chinook salmon, coho salmon (Oncorhynchus kisutch), and steelhead 0Oncorhynchus mykiss).” The FEIS states that the Fisheries Service “has indicated that Horseshoe Bay is located within the designated critical habitat for the winter run of the Sacramento River winter-run chinook salmon (Oncorhynchus tschawystcha).” Further, the FEIS states that the Fisheries Service and the Fish and Wildlife Service “identified species that are federally listed as endangered or threatened or federal candidates with distributions that occur ... where Fort Baker is located.... The habitat and possible occurrence of these species and other sensitive species is considered in Appendix C.” Appendix C lists these salmonids’ specific classification, habitat, known distribution, occurrence, and critical habitat at Fort Baker. For some of the salmonids, the table identifies the time of year when they are present at Fort Baker. The FEIS also provides specific mitigation measures to prevent harm to salmon-ids in the area. Specifically, the FEIS states: To minimize impacts to listed and proposed-for-listing species, as well as herring spawning habitat, bulkhead/riprap removal, beach restoration, marina conversion, and future dredging activities (if deemed necessary) shall occur during the months of June through September and would therefore be scheduled outside the normal herring spawning period (October through April). These activities would also be conducted outside fhe period of the downstream migration of juvenile salmon, which begins in the northern portions of the Sacramento River system in July through December, with peak migration in September and October. This migration can continue until mid-March in drier years.... Consultation with resource and permitting agencies through the Corps permit process could identify additional requirements to protect aquatic organisms.... [T]his would avoid or mitigate short-term adverse impacts to aquatic organisms and fish as a result of beach restoration and dredging activities. (Emphasis added.) Sausalito argues that the listing of threatened salmon species in the appendix, rather than in the text of the FEIS, impairs its usefulness ás a biological assessment. We disagree. There is no requirement barring a biological assessment from including relevant information in an appendix, and the text of the FEIS clearly indicates that further information about specific species is included in Appendix C. Sausalito also argues that the FEIS is not adequate as a biological assessment because it does not “address the summer presence of some of these salmon stock within Horseshoe Cove, and their vulnerability to harm from the Plan’s proposed construction, excavation and dredging activities.” We disagree with this argument as well. The presence of particular species of juvenile salmon in the area was set out in Appendix C, and the presence of salmon generally was discussed in the mitigation section. That section describes the timing of the salmon migration, stating: “[T]he period of the downstream migration of juvenile salmon ... begins in the northern portions of the -Sacramento River system in July through December, with peak migration in September and October.” The Park Service thus discussed the potential presence of salmon in the area and tailored a mitigation measure that would respond to the salmon’s presence. Because we are convinced that the Park Service considered all the “relevant factors” and “important aspeet[s] of the problem” and crafted an assessment, requiring specific mitigation, that was responsive to these concerns, Native Ecosystems Council, 304 F.3d at 901, we hold that the Park Service’s biological assessment was adequate under the ESA. 3. Compliance with 180-Day Deadline The ESA requires, with some exceptions, that a biological assessment be completed within 180 days. 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12®. Sausalito claims that the Park Service violated the ESA by not completing a biological assessment within 180 days after receiving a species list from the Fish and Wildlife Service. On May 6, 1998, the Fish and Wildlife Service provided the Park Service with a list of species and habitats that may be affected by the Plan. The Park Service issued a biological assessment in the form of the draft EIS on October 14, 1998, within 180 days of receipt of that list. Soon after, on October 19, 1998, responding to a July 1998 request from the Park Service, the Fish and Wildlife Service sent the Park Service an updated species list that included species not on the previous list. The Park Service issued its FEIS and updated biological assessment in October 1999, almost a year after receiving the updated and expanded list. The Park Service concedes that the October 1999 biological assessment violated the 180-day deadline. The Park Service argues, however, that “Sausalito cannot show that this violation harmed or will harm any of its interests.” In reviewing agency action, the APA requires that “due account shall be taken of the rule of prejudicial error.” 5 U.S.C. § 706. We have applied a harmless error rule to agency action differently, depending on both the types of action and error at issue. In the rulemaking context, we “exercise great caution in applying the harmless error rule,” holding that “failure to provide notice and comment is harmless only where the agency’s mistake clearly had no bearing on the procedure used or the substance of decision reached.” Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487 (9th Cir.1992) (internal quotations and citations omitted); accord Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir.1995); Cal-Almond, Inc. v. USDA, 14 F.3d 429, 442 (9th Cir.1993); Buschmann v. Schweiker, 676 F.2d 352, 358 (9th Cir. 1982). In other contexts, however, our review for harmless error is more demanding of plaintiffs. Where the agency’s error consisted of a failure to comply with regulations in a timely fashion, we have required plaintiffs to identify the prejudice they have suffered. Thus, when plaintiffs have “failed to identify any prejudice from the delay, no [judicial] action is warranted.” Hall v. U.S. ERA, 273 F.3d 1146, 1163-64 (9th Cir.2001); see also Kolek v. Engen, 869 F.2d 1281, 1286 (9th Cir.1989) (discussing application of harmless error rule to procedural mistakes). In this case, like Hall, the agency’s error consisted of tardiness in performing a required task. By the time suit was filed, however, the task had been completed. In this circumstance, we require plaintiffs to identify the harm they have suffered because of the agency delay. Because Sau-salito, like the plaintiff in Hall, has pointed to no harm resulting from the Park Service’s belated biological assessment, we hold that it is not entitled to a remedy as a result of the Park Service’s tardiness. Our holding is consistent with our decisions in Biodiversity Legal Foundation v. Badgley, 309 F.3d 1166 (9th Cir.2002), and Center for Biological Diversity v. Norton, 254 F.3d 833 (9th Cir.2001), where, without conducting a harmless error review, we awarded the remedies plaintiffs sought when an agency had not complied with ESA deadlines. In both Badgley and Norton, plaintiffs sought injunctions to compel agencies to perform actions required by the ESA. In both cases, the agency had not yet performed its obligations under the ESA when suit was filed, and plaintiffs sought to compel performance of those obligations. Here, by contrast, when Sau-salito filed suit, the Park Service had already satisfied its ESA obligations in that it had issued — albeit belatedly — a biological assessment in the form of the FEIS. Because we conclude that the Park Service’s tardiness was harmless, Sausalito is not entitled to an injunction, based on the ESA, preventing the Park Service from implementing the Fort Baker Plan. D. Coastal Zone Management Act The Coastal Zone Management Act (“CZMA”) requires that “[e]ach Federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs.” 16 U.S.C. § 1456(c)(1)(A). A federal agency ensures consistency of its actions with a state management program by submitting a “consistency determination to the relevant State agency.” Id. § 1456(c)(1)(C); see also 15 C.F.R. § 930.36. After receipt of the consistency determination, the “State agency shall inform the Federal agency of its concurrence with or objection to the Federal agency’s consistency determination.” 15 C.F.R. § 930.41. California has an approved coastal management program for the San Francisco Bay (“the Bay”). Cal. Govt.Code §§ 66600, 66603. The San Francisco Bay Conservation and Development Commission (“Bay Commission”) administers the program under the San Francisco Bay Plan (“Bay Plan”). Id. §§ 66603, 66620-25. The Bay Plan directs, in relevant part, that “[l]imited commercial recreation facilities, such as small restaurants, should be permitted within waterfront parks provided they are clearly incidental to park use, are in keeping with the basic character of the park, and do not obstruct public access to and enjoyment of the Bay.” The Bay Plan further directs that “[ljimited commercial development may be appropriate ... in all parks shown on the Plan maps except ivhere there is a specific note to the contrary ” (Emphasis added.) Such a “specific note to the contrary” appears on “Bay Plan Map No. 4,” and states that “[n]o commercial uses [should occur at Fort Baker] except for convenience needs of park visitors.” The Park Service submitted to the Bay Commission a “consistency determination” that the Fort Baker Plan was consistent with the Bay Plan. The Bay Commission concurred in this determination. Sausalito contends that this consistency determination does not satisfy the CZMA because the Fort Baker Plan is not “consistent to the maximum extent practicable” with the Bay Plan. 16 U.S.C. § 1456(c)(1)(A). Sau-salito argues that the Bay Plan clearly indicates that “commercial uses” are permitted at Fort Baker only if they are “for [the] convenience needs of park visitors,” and that “commercial recreation facilities” are “permitted within waterfront parks” only if “they are clearly incidental to park use.” Sausalito argues that the construction of a conference center at Fort Baker contravenes these clear directives because the conference center and its attendant commercial services will be “destination magnets designed to draw hundreds of thousands of visitors to Fort Baker for conventions, seminars and other purposes unrelated to recreational enjoyment of[Fort Baker’s] waterfront.” Sausalito also argues that, in contravention of the Bay Plan, the conference center is not “in keeping with the basic character of the park.” Because of these asserted inconsistencies, Sausalito contends that the Park Service’s determination that the Fort Baker Plan is consistent with the Bay Plan is incorrect. In considering challenges to CZMA consistency determinations, we have previously stated that “[w]here procedures to resolve potential federal-state disagreements over matters affecting the jurisdiction of both have been established, we should be reluctant to set aside determinations made pursuant to those procedures absent a compelling reason to do so.” Save Lake Washington v. Frank, 641 F.2d 1330, 1339 (9th Cir.1981). We do not generally find a “compelling reason” to overturn a consistency determination simply because our “opinion on the substantive issue of consistency” is different from that of the federal and state agencies. Cf. id. (“expressing] no opinion on the substantive issue of consistency” and refusing to overturn federal consistency determination). That is, we will not generally overturn a consistency determination just because we might have come to a different conclusion were the determination of “consistency” before us in the first instance. Cf. Overton Park, 401 U.S. at 416, 91 S.Ct. 814 (1971) (we may not substitute our judgment for that of agency when reviewing agency action). However, in this case, we hold that there is a “compelling reason” to hold that the Park Service’s consistency determination was based on an improper ground under the CZMA. Save Lake Washington, 641 F.2d at 1339. The regulations implementing the CZMA specifically provide that “[fjederal agencies shall not use a general claim of a lack of funding ... as a basis for being consistent to the maximum extent practicable with an enforceable policy of a management program.” 15 C.F.R. § 930.32(a)(3). In arriving at its consistency determination, and in procuring the Bay Commission’s concurrence in that determination, the Park Service relied on just such a “general claim” of insufficient funding. In presenting its consistency determination to the Bay Commission, the Park Service stated, “As the steward of more than 670 historic structures, the Golden Gate National Recreation Area has a 27-year track record of historic preservation through compatible re-use.... This is important because the initial high cost of rehabilitation of the historic buildings can not be met entirely through federal appropriations -” (Emphasis added.) The Park Service continued, “The Fort Baker Plan proposes to continue in that tradition by engaging partner organizations to provide for visitor-oriented public uses ... including] the Bay Area Discovery Museum and a public-serving retreat and conference center.” The Bay Commission relied heavily on the Park Service’s claim of insufficient funding in ultimately concurring with the Park Service’s consistency determination. The Bay Commission noted that the conference center proposed for Fort Baker seemed to conflict with the Bay Plan’s limitations on commercial uses. The Bay Commission stated: According to Bay Plan Map No. 4 ... the center, if commercial, should not be located at Fort Baker, except for visitors’ convenience. Nevertheless, new uses would be required to rehabilitate and preserve the historic buildings. However, in this case, the [Park Service] believes the funds that will be obtained from the conference and retreat center are necessary to save the historic structure and provide for their use and enjoyment. In addition, the [Park Service] believes that the conference and retreat center is a public use, implemented through a partnership that may involve a commercial partner. The [Park Service] noted that “... [a] comprehensive assessment of the buildings and infrastructure revealed that funding is needed to ... renovate buildings for their new uses. A major investment of resources is needed to address the historic preservation and public use goals for this historic landmark-an amount that significantly exceeds the level of-funding available through federal sources.” The center is intended to provide the additional funds needed to preserve the site, but the [Park Service] also believes that an identity for the center can be created that will strengthen its relationship to Fort Baker through the creation [of] conference and retreat center programming that serves the public. Thus, the [Park Service] believes that the proposed reuse of Fort Baker, including the conference and retreat center, is consistent with the Bay Plan recreation policies to the maximum extent practicable. The funding required to rehabilitate and maintain the important historic structures and to support the park-related programs will be provided by the conference center; therefore, the center will help to create a unique shoreside park at Fort Baker. (Emphasis added.) The Bay Commission then concluded that the Fort Baker Plan was consistent with the Bay Plan “to the maximum extent practicable”: The Commission finds that the Fort Baker Reuse Plan is consistent to the maximum extent practicable with the Bay Plan policies on recreation because the rehabilitation and maintenance of the historic structures present at Fort Baker must be funded' and the conference and retreat center will be operated in a manner compatible with an enlivening to the core park space, even if the conference and retreat center were found to be a commercial use that is not fully consistent with the Bay Plan Map policy note. In fact, a revenue-generating source is required to accomplish the recreational and shoreside park goals identified in the Bay Plan policies. (Emphasis added.) In making its consistency determination and in seeking the Bay Commission’s concurrence, the Park Service relied on the need to generate funds for the Fort Baker complex, even though lack of funds is explicitly forbidden as a criterion for finding consistency under 15 C.F.R. § 930.32(a)(3). The Park Service’s and the Bay Commission’s reliance on a proscribed criterion in concluding that the Fort Baker Plan is “consistent to the maximum extent possible” with the Bay Plan is a “compelling reason” for holding that the Park Service’s consistency determination was improper under the CZMA. Because the Park Service “relied on factors which Congress has not intended [them] to consider,” we hold that the Park Service acted arbitrarily and capriciously with respect to its statutory obligations under the CZMA. Motor Vehicle Mfrs., 463 U.S. at 43, 103 S.Ct. 2856. E. Marine Mammal Protection Act It is unlawful under the Marine Mammal Protection Act (“MMPA”) to “take” a marine mammal without a permit. 16 U.S.C. §§ 1372, 1374. Under the statute, “take” means “harass, hunt, capture, or kill” or to attempt to “harass, hunt, capture, or kill.” Id. § 1362(13). A 1994 amendment to the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which— (i) has the potential to injure a marine mammal or marine mammal stock in the wild; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering. Id. § 1362(18)(A). This definition or harassment is broader than it had been prior to the amendment. Implementing regulations to the MMPA, promulgated before the passage of the 1994 amendment and not subsequently amended, define “take” as follows: Take means to harass, hunt, capture, collect, or kill, or attempt to harass, hunt, capture, collect, or kill any marine mammal. This includes, without limitation, any of the following: The collection of dead animals, or parts thereof; the restraint or detention of a marine mammal, no matter how temporary; tagging a marine mammal; the negligent or intentional operation of an aircraft or vessel, or the doing of any other negligent or intentional act which results in .disturbing or molesting a marine mammal; and feeding or attempting to feed a marine mammal in the wild. 50 C.F.R. § 216.3. Sausalito contends that implementation of the Fort Baker Plan will effectuate a “taking” without an MMPA permit. The FEIS states, “Construction activities at the fishing pier and marina could temporarily disrupt all marine animals, including harbor seals, California sea lions, and feeding, resting and nesting waterbirds and seabirds, in the proximity of work sites and in the water.” It further states that “[ijncreased boating in the area and use of the boat ramp might disrupt marine mammals ... that congregate in the area.” Relying in part on our decision in United States v. Hayashi, 22 F.3d 859 (9th Cir. 1993), the Park Service contends that implementation of the Plan will not effectuate a taking. However, we decided Hayashi a year before the adoption of the 1994 amendment expanding the definition of “harassment.” Because the district court held that Sau-salito did not have standing to seek an injunction requiring that the Park Service seek a permit, it did not reach the merits of Sausalito’s claim under MMPA. The. briefing on the merits in this court is somewhat cursory. Under the circumstances, we think it best for us not to decide the question as an initial matter. We are remanding the case to the district court in any event because of our holding on Sausalito’s claim under the Coastal Zone Management Act, and we therefore do not unduly delay final resolution of this case in remanding to the district court for an initial decision on the merits of Sausali-to’s MMPA claim. F. Migratory Bird Treaty Act The Migratory Bird Treaty Act (“MBTA”) provides that without authorization from the Secretary of the Interior it is unlawful to “pursue, hunt, take, capture, kill, attempt to take, capture, or kill” any migratory bird or “any part, nest, or egg of any such bird.... ” 16 U.S.C. § 703. Sausalito asserts that implementation of the Fort Baker Plan will violate the MBTA because migratory birds’ nesting trees will be cut down, thereby disturbing both birds and their nests. The FEIS makes clear that the Park Service has not sought, and does not intend to seek, authorization from the Secretary. In Seattle Audubon Society v. Evans, we explained that the definition of an unlawful “taking” under the MBTA “describes physical conduct of the sort engaged in by hunters and poachers, conduct which was undoubtedly a concern at the time of the statute’s enactment in 1918.” 952 F.2d at 302. There we held that unlike under the ESA, an unlawful “taking” under the MBTA did not occur through “habitat destruction,” even that which “le[d] indirectly to bird deaths.” Id. at 303. Because Sausalito alleges only that migratory birds and their nests will be disturbed through habitat modification, we hold that the Park Service does not need to seek authorization from the Secretary. G. National Park Service’s Organic Act & the Act Establishing the Golden Gate National Recreation Area The National Park Service’s Organic Act (“Organic Act”) provides: The authorization of activities shall be construed and the protection, management, and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established, except as may have been or shall be directly and specifically provided by Congress. 16 U.S.C. § la-1. The Act establishing the Golden Gate National Recreation Area instructs that the Secretary of the Interior “shall utilize the resources in a manner which will provide for recreation and educational opportunities consistent with sound principles of land use planning and management,” and further that the Secretary “shall preserve the recreation area, as far as possible, in its natural setting, and protect it from development and uses which would destroy the scenic beauty and natural character of the area.” Id. § 460bb. Sausalito contends that the Park Service violated these Acts in two ways. First, it contends that the Park Service “disregarded and contravened this ‘purpose’ by approving the Plan without adequate environmental review and consideration of alternatives.” Second, it contends that the Park Service has circumvented its “fundamental purpose” of “resource protection” and its mandate to protect the Golden Gate National Recreation Area “from development and uses which would destroy the scenic beauty and natural character of the area” by opening Fort Baker to a “huge increase in the existing intensity of development” that “would transform Fort Baker into an urban center of over 400,000 square feet of commercial uses, including 156,000 square feet of new development....” We disagree. Because we have held that the Park Service complied with NEPA and the ESA, we reject Sausalito’s claim to the extent that it is premised upon violation of these statutes. We also reject Sausalito’s claim that the development contemplated for Fort Baker is fundamentally at odds with the congressional directives of the Organic Act and the Act establishing the Golden Gate National Recreation Area. As an initial matter, the Fort Baker Plan will not, as Sausalito asserts, add 156,000 square feet of new development to the site. As the FEIS indicates, this figure is offset by the projected removal of 71,000 square feet of existing structures. The maximum net new construction is therefore only 85,-000 square feet. Further, the FEIS states that “[t]he proposed rehabilitation, demolition and new construction would be accommodated within the existing developed footprint of Fort Baker and be required to maintain the site’s character.... No adverse land use impacts due to building removal or new construction are expected.” In describing how the Fort Baker Plan would preserve the character of the site, the FEIS states: Increased activity levels, especially in the conference and retreat center and the waterfront, including the [Bay Area Discovery Museum] complex could change the feeling of Fort Baker as an undiscovered site. However, the Proposed Action would provide for maximum protection of the site’s cultural and natural resources to protect the intangible qualities that contribute to its special character. Many of its deteriorated landscape features would be enhanced or restored. In general, landscape and buildings changes would be in keeping with the historic character of the site. Intensive uses would remain in areas where they currently occur (waterfront, [Bay Area Discovery Museum] and Parade Ground/ Capehart areas) or would take place indoors (conference and retreat center). Guidelines would control compatibility of events held at Fort Baker. Preservation of the character of Fort Baker is considered a beneficial impact. The FEIS further details that “[approximately 42 acres of natural habitat would be maintained, enhanced or restored” and “[e]xisting trails would be improved where surfaces are degraded, signing inadequate, or where accessibility improvements are possible without conflicting with other resource values.” With respect to the site’s scenic beauty, the FEIS states that “the Proposed Action includes the removal of visually distractive elements, such as deteriorated surfaces, nonhistoric structure, and asphalt paving. These site changes, as well as the creation of the beach and the restoration of the Parade Ground, would substantially enhance existing views by improving the park — and campus-like character and revealing the historic nature of the site.” Finally, with respect to the cumulative impacts to the visual and aesthetic resources of the site, the FEIS concludes: Fort Baker and the adjacent Marin Headlands provide a striking and rugged backdrop against the highly urbanized San Francisco peninsula and surrounding Bay Area. The visual prominence and importance of this area to the regional landscape is substantial. Implementation of the Proposed Action would provide for the long-term protection and enhancement of Fort Baker’s character by preserving and restoring historic buildings and the cultural landscape. Removal of existing parking at the waterfront, and restoration of this area to beach and grassy area would improve views from the Parade Ground towards the Bay as well as views from off-site. Ongoing resource management actions such as habitat restoration projects and other site stewardship programs within the Headlands and in other visually prominent areas ... would have a positive effect on scenic vistas and views within the region. On this record, we cannot conclude that the development contemplated by the Fort Baker Plan is fundamentally at odds with the directives of the Organic Act and the Act establishing the Golden Gate National Recreation Area. We are satisfied that the Park Service has balanced the potential harms of development with its responsibilities for conservation, preservation, and public service. In the absence of a particular congressional directive outlining specific limitations on the development of Fort Baker-such as that provided for the Presi-dio of San Francisco, another Golden Gate National Recreation Area site-we decline to hold that the Park Service arbitrarily and capriciously violated these Acts. See Omnibus Parks and Land Management Act of 1996, Pub.L. No. 104-333, § 104(c)(3), 110 Stat. 4093, 4102 (1996) (management program for the Presidio shall provide that “new construction [is] limited to replacement of existing structures of similar size in existing areas of development”). H. Concessions Management Improvement Act The Regulations implementing the Concessions Management Improvement Act (“CMIA”) direct that “[development of visitor services in park areas will be limited to locations that are consistent to the highest practicable degree with the preservation and conservation of the resources and values of the park area.” 36 C.F.R. § 51.2. Sausalito contends that the Park Service has violated this Regulation by not developing the “maximum resource restoration” alternative in the FEIS, and by “ignoring] procedures required under NEPA, ESA, CZMA, MMPA, and MBTA, further eroding the park’s natural resources.” To the extent that Sausalito’s claim is based on the Park Service’s dismissal of the “maximum resource restoration” alternative, we reject it. We have already concluded that it was not arbitrary and capricious for the Park Service not to have developed this alternative further. To the extent that Sausalito’s claim is based on its contention that the Park Service did not satisfy its statutory obligations under the listed statutes, we also reject it. We have already concluded that, with the exception of the CZMA, the Park Service complied with its statutory obligations. That the Park Service has failed, however, to comply with the CZMA does not demonstrate that it has developed visitor services in “locations that are [not] consistent to the highest practicable degree with the preservation and conservation of the resources and values of the park area” within the meaning of the CMIA. Id. On this record, we cannot conclude that the Park Service has arbitrarily and capriciously failed to satisfy its obligations under the CMIA. I.Omnibus Parks and Public Lands Management Act of 1996 The Omnibus Parks and Public Lands Management Act of 1996 (“Omnibus Act”) directs that “[t]he Secretary may not utilize any lands for the purposes of providing field employee housing ... which will impact primary resource values of the area or adversely affect the mission of the agency.” 16 U.S.C. § 17o(17)(A). Sausalito contends that the Fort Baker Plan violates this prohibition by authorizing on-site housing that “impacts Fort Baker’s ‘primary resource values’ ... by impairing Fort Baker’s ‘scenic beauty and natural character,’ ” citing the Act creating the Golden Gate National Recreation Area, 16 U.S.C. § 460bb. As discussed above, the FEIS emphasizes that the Fort Baker Plan will preserve and enhance Fort Baker’s “scenic beauty and natural character.” Sausalito has pointed to nothing contravening the FEIS in this respect. We therefore hold that the Park Service did not act arbitrarily or capriciously with respect to its obligations under the Omnibus Act. Conclusion We hold that Sausalito has standing to pursue all of its claims under all the statutes under which it brought suit. With the exception, however, of its claims under the Coastal Zone Management Act and the Marine Mammal Protection Act, Sausali-to’s claims fail on the merits. We remand to the district court for further proceedings consistent with this opinion. Parties shall bear their own costs. AFFIRMED in part; REVERSED in part; and REMANDED. . Sausalito challenges the district court’s ruling striking portions of Whitson’s declaration about which the magistrate held Whitson was not competent to testify. City of Sausalito v. O’Neill, 211 F.Supp.2d 1175, 1186 n. 1 (N.D.Cal.2002). We hold that the court did not abuse its discretion in striking portions of Whitson’s declaration, and we quote Whit-son’s declaration here as modified. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (trial court’s decision to admit or exclude expert testimony is reviewed for abuse of' discretion). . The Park Service has sought to supplement the record on appeal to this court. According to the Park Service, the Bay Commission adopted an amendment to the Bay Plan on October 17, 2002, but the United States Department of Commerce has not yet approved it. The amendment would change the parts of the Bay Plan that have restricted commercial development at Fort Baker. If approved, a newly added section, “Policy 5c: Bayfront Military Installations Designated as Waterfront Parks,” .would provide: To assist in generating the revenue needed to preserve historic structures and develop and maintain park improvement and to achieve other important public objectives, uses other than water-oriented recreation, commercial recreation and public assembly facilities may be authorized on former military installations designated on the Bay Plan maps for waterfront park uses only at locations identified in the Bay Plan map policies. Further, the Bay Plan map for the area that includes Fort Baker would be amended to eliminate the notation that has previously provided, "No commercial except for convenience needs of park visitors.” We may take judicial notice of a record of a state agency not subject to reasonable dispute. See Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir.1986) (court may take judicial notice of records and reports of state administrative bodies), overruled on other grounds by Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). We decline, however, to do so here. Even if we were to take judicial notice of the amended Bay Plan, and even if the amended plan has legal consequence in the absence of approval by the Department of Commerce, the amended Bay Plan would not affect the appeal now before us. The federal courts are not empowered to determine, in the first instance, whether the Fort Baker Plan, as described in the FEIS, is consistent with the Bay Plan. Rather, the federal courts are required under the CZMA to review agency assessments of consistency of the Fort Baker Plan with the Bay Plan. Until there has been an agency consistency determination, there is nothing for the federal courts to review. We decline to take judicial notice of the amendments to the Bay Plan that have been adopted by the Bay Commission because, even if we took judicial notice, the amendments could have no legal significance in this appeal.

Gibbs v. Babbitt

Affirmed by published opinion. Chief Judge WILKINSON wrote the majority opinion, in which Judge MICHAEL joined. Judge LUTTIG wrote a dissenting opinion. OPINION WILKINSON, Chief Judge: In' this case we ask whether the national government can act to conserve scarce natural resources of value to our entire country. Appellants challenge the constitutionality of a Fish and Wildlife Service regulation that limits the taking of red wolves on private land. The district court upheld the regulation as a valid exercise of federal power under the Commerce Clause. We now affirm because the regulated activity substantially affects interstate commerce and because the regulation is part of a comprehensive federal program for the protection of endangered species. Judicial deference to the judgment of the democratic branches is therefore appropriate. I. A. In response to growing concern over the extinction of many animal and plant species, Congress enacted the Endangered Species Act of 1973(ESA), Pub.L. 93-205, 81 Stat. 884 (codified as amended at 16 U.S.C. §§ 1531-44 (1994 & Supp. Ill 1997)). Congress found that many of the species threatened with extinction are of “esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people.” 16 U.S.C. § 1531(a)(3) (1994). Congress also found that “various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growdh and development untempered by adequate concern and conservation.” Id. § 1531(a)(1). To address these national concerns, the ESA sets forth a comprehensive regulatory scheme to conserve these species and the ecosystems upon which they depend. The Act provides, inter alia, for the listing of “endangered” and “threatened” species, id. § 1533, and various recovery plans for the “conservation and survival” of listed species, id. § 1533(f). The cornerstone of the statute is section 9(a)(1), which prohibits the taking of any endangered species without a permit or other authorization. Id. § 1538(a)(1)(B). The term “take” is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Id. § 1532(19). The ESA also authorizes the Fish and Wildlife Service (FWS) to issue any necessary regulations for the conservation of threatened species. Id. § 1533(d). Finally, in keeping with its commitment to species conservation, the ESA states that a state law may be more restrictive than the provisions of the Act, but not less. Id. § 1535(f). In order to increase the Service’s flexibility in reintroducing endangered species into portions of their historic range, Congress extensively amended the ESA in 1982, Pub.L. 97-304, 96 Stat. 1426. Prior to 1982, reintroduced species were treated the same as any other endangered species. See id. § 1536 & 1538(a) (providing for stringent consultation and reporting requirements and a near absolute prohibition on the taking of endangered species). These strict limits led to significant local opposition to the reintroductions. In response to these problems, Congress added section 10(j), which allows the FWS to designate as “experimental” some reintroduced populations of endangered or threatened species. Id. § 1539Q). Under the looser standards of section 10(j), members of an experimental population are generally to be treated as threatened rather than endangered. Id. § 1539(j)(2)(C). This means that protective regulations may be established for their conservation. See id. at 1533(d). By promulgating special rules for an experimental population the Service can determine which prohibitions and exceptions shall apply. See 50 C.F.R. § 17.82 (1998). A population may be designated as “experimental” only after the Service determines that it is not “essential” to the continuation of the species. Id. § 1539(j)(2)(B). An experimental population located on private land can be exempt from some of the more stringent requirements for endangered species. See id. § 1539(j)(2)(C)(i). If a population is found to be “non-essential” and is designated as “experimental,” the FWS can develop “special regulations for each experimental population that will address the particular needs of that population.” H.R.Rep. No. 97-567, at 34 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2834. Furthermore, “there will be instances where the regulations allow for the incidental take of experimental populations.” Id. Thus, under section 10(j), the FWS has the authority to promulgate regulations allowing the taking of experimental reintroduced populations under limited circumstances. B. The red wolf, Canis rufus, is an endangered species whose protection is at issue in this case. The red wolf was originally found throughout the southeastern United States. It was once abundant in the “rive-rine habitats of the southeast,” and was especially numerous near the “canebrakes” that harbored large populations of swamp and marsh rabbits, the primary prey of the red wolf. 51 Fed.Reg. 41,790, 41,791 (1986). The FWS found that “the demise of the red wolf was directly related to man’s activities, especially land changes, such as the drainage of vast wetland areas for agricultural purposes ... and predator control efforts at the private, State, and Federal levels.” Id. Activities such as wetlands drainage, dam construction, and hunting reduced the red wolf to such meager numbers that it was listed as endangered in 1976. See 32 Fed.Reg. 4001 (1976). Because of the paucity of animals left in the wild, their poor physical condition, and the threats posed by inbreeding, the FWS decided to trap the remaining red wolves in the mid-1970s and place them in a captive breeding program. See 51 Fed.Reg. at 41,791. The breeding program anticipated the eventual reintroduction of some red wolves into the wild. Id. In 1986, the FWS issued a final rule outlining a reintroduction plan for red wolves in the 120,000-acre Alligator River National Wildlife Refuge in eastern North Carolina. See 51 Fed.Reg. 41,790. This area was judged the ideal habitat within the red wolfs historic range. Id. at 41,-791. Between 1987 and 1992, a total of 42 wolves were released in the Refuge. In 1993, the reintroduction program was expanded to include the release of red wolves in the Pocosin Lakes National Wildlife Refuge in Tennessee. Since reintroduction, some red wolves have wandered from federal refuges onto private property. From available data, as of February 1998 it was estimated that about 41 of the approximately 75 wolves in the wild may now reside on private land. This case raises a challenge to 50 C.F.R. § 17.84(c), a regulation governing the experimental populations of red wolves reintroduced into North Carolina and Tennessee pursuant to section 10(j). The FWS has extended the takings prohibitions of section 9(a)(1) to the experimental red wolf populations with certain exceptions. See 50 C.F.R. § 17.84(c) (1998). As noted above, the taking provision of section 9(a)(1) prevents landowners from harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting any endangered species. See 16 U.S.C. § 1532(19). However, in order to insure that other agencies and the public would accept the proposed reintroduction, the FWS relaxed the taking standards for wolves found on private land under its authority over experimental populations. Section 17.84(c) allows a person to take red wolves on private land “[pjrovided that such taking is not intentional or willful, or is in defense of that person’s own life or the lives of others.” Id. § 17.84(c)(4)®. Private landowners may also take red wolves on their property “when the wolves are in the act of killing livestock or pets, Provided that freshly wounded or killed livestock or pets are evident.” Id. § 17.84(c)(4)(iii). A landowner may also “harass red wolves found on his or her property ... Provided that all such harassment is by methods that are not lethal or injurious to the red wolf.” Id. § 17.84(c)(4)(iv). Finally, landowners may take red wolves after efforts by Service personnel to capture such animals have been abandoned, and such taking has been approved in writing. Id. § 17.84(c)(4)(v). All of these exceptions to the taking prohibition are subject to a 24-hour reporting requirement. Id. § 17.84(c)(4). C. In October 1990, plaintiff Richard Lee Mann shot a red wolf that he feared might threaten his cattle. The federal government prosecuted Mann under § 17.84(c), and Mann pled guilty. Mann’s prosecution triggered some opposition to the red wolf program in the surrounding communities. After the program was in place for several years, the FWS .held meetings with local governments and the public to receive feedback about the reintroductions. The Service contended that most people who commented expressed support for the program and that the reintroductions were generally supported by local, state and federal agencies, and elected officials. See 58 Fed.Reg. 62,086, 62,088 (1993). In addition, owners of nearly 200,000 acres of private land have permitted red wolves onto their land through agreements with the FWS. Nonetheless, Hyde and Washington Counties, and the towns of Belha-ven and Roper, passed resolutions opposing the reintroduction of the wolves. The resolutions appeared to be based on the farming community’s fears of prohibitions on private land use. Id. In response to discontent with the reintroduction program, the North Carolina General Assembly passed a bill entitled “An Act to Allow the Trapping and Killing of Red Wolves by Owners of Private Land.” The Act makes it lawful to kill a red wolf on private property if the landowner has previously requested the FWS to remove the red wolves from the property. See 1994 N.C. Sess. Laws Ch. 635, amended by 1995 N.C. Sess. Laws Ch. 83 (adding Beaufort and Craven Counties to the Act, which initially covered only Hyde and Washington Counties). This law facially conflicts with the federal regulation. For instance, § 17.84(c) allows the taking of red wolves “when the wolves are in the act of killing livestock or pets,” when wounded or dead livestock or pets are evident and the taking is reported within 24 hours. See 50 C.F.R. § 17.84(c)(4)(iii). By contrast, the North Carolina statute makes it lawful to kill a red wolf on private property when the landowner “reasonably believes” that the wolf may be a threat to people or livestock and the “landowner has previously requested .the [FWS] to remove the red wolves from the landowner’s property.” See 1994 N.C. Sess. Laws Ch. 635, § 1. The government reports, however, that no actual conflicts between these laws have arisen, because there have been no contested state or federal prosecutions for unlawful takes since the North Carolina statute was enacted. Appellants Charles Gibbs, Richard Mann, Hyde County, and Washington County filed the instant action challenging the federal government’s authority to protect red wolves on private land. They seek a declaration that the anti-taking regulation, 50 C.F.R. § 17.84(c), as applied to the red wolves occupying private land in eastern North Carolina, exceeds Congress’s power under the interstate Commerce Clause, U.S. Const, art. I, § 8, cl. 3 (“Congress shall have Power ... To regulate Commerce ... among the several States ...”). Appellants also seek an injunction against continued enforcement of the anti-taking regulation on non-federal land. Appellants claim that the red wolves have proven to be a “menace to citizens and animals in the Counties.” They further allege that because of the federal regulatory protections surrounding the wolves, North Carolinians cannot effectively defend their property. On cross-motions for summary judgment, the United States District Court for the Eastern District of North Carolina held that Congress’s power to regulate interstate commerce includes the power to regulate conduct that might harm red wolves on private land. See Gibbs v. Babbitt, 31 F.Supp.2d 531 (E.D.N.C.1998). The district court found that the red wolves are “things in interstate commerce” because they have moved across state lines and their movement is followed by “tourists, academics, and scientists.” Id. at 535. The court also found that the tourism they generate substantially affects interstate commerce. See id. The private landowners and North Carolina Counties now appeal. II. We consider this case under the framework articulated by the Supreme Court in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Morrison, — U.S.-, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), ajfg Brzonkala v. Virginia Polytechnic Institute and State University, 169 F.3d 820 (4th Cir.1999). While Congress’s power to pass laws under the Commerce Clause has been interpreted broadly, both Lopez and Morrison reestablish that the commerce power contains “judicially enforceable outer limits.” See Lopez, 514 U.S. at 566, 115 S.Ct. 1624; Morrison, 120 S.Ct. at 1748^49. It is essential to our system of government that the commerce power not extend to effects on inter-state commerce that are so remote that we “would effectually obliterate the distinction between what is national and what is local.” National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 81 L.Ed. 893 (1937). Indeed, the judiciary has the duty to ensure that federal statutes and regulations are promulgated under one of the enumerated grants of constitutional authority. It is our further duty to independently evaluate whether “a rational basis exist[s] for concluding that a regulated activity sufficiently affect[s] interstate commerce.” Lopez, 514 U.S. at 557,115 S.Ct. 1624. While this is rational basis review with teeth, the courts may not simply tear through the considered judgments of Congress. Judicial restraint is a long and honored tradition and this restraint applies to Commerce Clause adjudications. “Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.” Morrison, 120 S.Ct. at 1748. In fact, “[t]he substantial element of political judgment in Commerce Clause matters leaves our institutional capacity more in doubt than when we decide cases, for instance, under the Bill of Rights.” Lopez, 514 U.S. at 579, 115 S.Ct. 1624 (Kennedy, J., concurring). We must enforce the structural limits of Our Federalism, but we must also defer to the political judgments of Congress, recognizing that the “Commerce Clause represents a broad grant of federal authority.” Brzonkala v. Virginia Polytechnic Instit. and State Univ., 169 F.3d 820, 830 (4th Cir.1999), ajfd sub nom. Morrison, 120 S.Ct. 1740. The Lopez Court recognized three broad categories of activity that Congress may regulate under its commerce power. 514 U.S. at 558, 115 S.Ct. 1624. “First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.” Id. at 558-59, 115 S.Ct. 1624 (citations omitted). Section 17.84(c) is “not a regulation of the use of the channels of interstate commerce, nor is it an attempt to prohibit the interstate transportation of a commodity through the channels of commerce.” Lopez, 514 U.S. at 559, 115 S.Ct. 1624. The term “channel of interstate commerce” refers to, inter alia, “navigable rivers, lakes, and canals of the United States; the interstate railroad track system; the interstate highway system; ... interstate telephone and telegraph lines; air traffic routes; television and radio broadcast frequencies.” United States v. Miles, 122 F.3d 235, 245 (5th Cir.1997). This regulation of red wolf takings on private land does not target the movement of wolves or wolf products in the channels of interstate commerce. This case also does not implicate Lopez’s second prong, which protects things in interstate commerce. Although the Service has transported the red wolves interstate for the purposes of study and the reintroduction programs, this is not sufficient to make the red wolf a “thing” in interstate commerce. See, e.g., Lopez, 514 U.S. at 559, 115 S.Ct. 1624 (rejecting application of prong two to Gun-Free School Zones Act, despite the fact that the regulated guns likely traveled through interstate commerce); National Assoc. of Home Builders v. Babbitt, 130 F.3d 1041, 1046 (D.C.Cir.1997) (“NAHB ”) (rejecting notion that Delhi Sands Flower-Loving Fly was a “thing” in interstate commerce). Therefore, if 50 C.F.R. § 17.84(c) is within the commerce power, it must be sustained under the third prong of Lopez. Under the third Lopez test, regulations have been upheld when the regulated activities “arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.” Lopez, 514 U.S. at 561, 115 S.Ct. 1624. In Morrison, the Supreme Court noted, “In every case where we have sustained federal regulation under Wick-ard ’s aggregation principle, the regulated activity was of an apparent commercial character.” Morrison, 120 S.Ct. at 1750 n. 4. The Court in Lopez likewise placed great emphasis on the “commercial concerns that are central to the Commerce Clause.” Lopez, 514 U.S. at 583, 115 S.Ct. 1624 (Kennedy, J., concurring); see also Hoffman v. Hunt, 126 F.3d 575, 586-87 (4th Cir.1997) (noting the importance of the distinction between “the regulation of, on the one hand, those activities that are commercial or economic in nature ... and, on the other hand, those activities that are not”). Although the connection to economic or commercial activity plays a central role in whether a regulation will be upheld under the Commerce Clause, economic activity must be understood in broad terms. Indeed, a cramped view of commerce would cripple a foremost federal power and in so doing would eviscerate national authority. The Lopez Court’s characterization of the regulation of homegrown wheat in Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), as a case involving economic activity makes clear the breadth of this concept. The Court explained that “[ejven Wickard, which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not.” Lopez, 514 U.S. at 560, 115 S.Ct. 1624; accord Morrison, 120 S.Ct. at 1749-50. See also Brzonkala, 169 F.3d at 835 (explaining that the Court has a “relatively broad understanding of such [economic] activity”). In fact, our understanding of commerce may not be limited to its “18th-century” forms. See Lopez, 514 U.S. at 574, 115 S.Ct. 1624 (Kennedy, J., concurring). While we must enforce meaningful limits on the commerce power, we must also be mindful of the “Court’s relatively generous conception of economic activity.” Brzonkala, 169 F.3d at 835. Lopez and Morrison rest on the principle that where a federal statute has only a tenuous connection to commerce and infringes on areas of traditional state concern, the courts should not hesitate to exercise their constitutional obligation to hold that the statute exceeds an enumerated federal power. Respect for our federal system of government was integral to those decisions. See Lopez, 514 U.S. at 561 n. 3, 115 S.Ct. 1624; Morrison, 120 S.Ct. at 1754-55. Yet Lopez also counsels that “[w]here economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.” 514 U.S. at 560, 115 S.Ct. 1624. In enforcing limits on the Congress, we must be careful not to overstep the judicial role. To strike down statutes that bear substantially upon commerce is to overstep our own authority even as we fault Congress for exceeding limits on its power. The irony of disregarding limits on ourselves in the course of enforcing limits upon others will assuredly not be lost on those who look to courts to respect restraints imposed by rules of law. With these basic principles in mind, we consider appellants’ challenge to § 17.84(c). III. Appellants argue that the federal government cannot limit the taking of red wolves on private land because this activity cannot be squared with any of the three categories that Congress may regulate under its commerce power. Appellants assert that 50 C.F.R. § 17.84(c) is therefore beyond the reach of congressional authority under the Commerce Clause. We disagree. It was reasonable for Congress and the Fish and Wildlife Service to conclude that § 17.84(c) regulates economic activity. The taking of red wolves implicates a variety of commercial activities and is closely connected to several interstate markets. The regulation in question is also an integral part of the overall federal scheme to protect, preserve, and rehabilitate endangered species, thereby conserving valuable wildlife resources important to the welfare of our country. Invalidating this provision would call into question the historic power of the federal government to preserve scarce resources in one locality for the future benefit of all Americans. A. To fall within Congress’s commerce power, this regulation must have a “substantial relation to interstate commerce”' — it must “substantially affect interstate commerce.” Lopez, 514 U.S. at 559, 115 S.Ct. 1624. The Supreme Court recently emphasized that “in those cases where we have sustained federal regulation of intrastate activity based upon the activity’s substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor.” Morrison, 120 S.Ct. at 1750-51. Intrastate activities may be subject to federal regulation if they have a “meaningful connection with[a] particular, identifiable economic enterprise or transaction.” Brzonkala, 169 F.3d at 834. We therefore must consider whether the taking of red wolves on private land is “in any sense of the phrase, economic activity.” Morrison, 120 S.Ct. at 1751-52. Unlike the Violence Against Women Act (VAWA) in Morrison and the Gun-Free School Zones Act (GFSZA) in Lopez, § 17.84(c) regulates what is in a meaningful sense economic activity. The Court in Morrison explained that both the VAWA and the GFSZA involved activity that was noneconomic and only tenuously linked to interstate commerce. 120 S.Ct. at 1749-52. Yet the taking of a red wolf on private land is unlike gender-motivated violence or guns near schools. The protection of commercial and economic assets is a primary reason for taking the wolves. Farmers and ranchers take wolves mainly because they are concerned that the animals pose a risk to commercially valuable livestock and crops. Indeed, appellants’ arguments focus quite explicitly on these economic concerns — they want freer rein to protect their property and investments in the land. See Appellants’ Br. at 10 (“In the face of these threats [from red wolves], North Carolinians cannot effectively defend their property.”); id. at 12. The relationship between red wolf takings and interstate commerce is quite direct — with no red wolves, there will be no red wolf related tourism, no scientific research, and no commercial trade in pelts. We need not “pile inference upon inference,” Lopez, 514 U.S. at 567, 115 S.Ct. 1624, to reach this conclusion. While a beleaguered species may not presently have the economic impact of a large commercial enterprise, its eradication nonetheless would have a substantial effect on interstate commerce. And through preservation the impact of an endangered species on commerce will only increase. Because the taking of red wolves can be seen as economic activity in the sense considered by Lopez and Morrison, the individual takings may be aggregated for the purpose of Commerce Clause analysis. See Morrison, 120 S.Ct. at 1750 n. 4. While the taking of one red wolf on private land may not be “substantial,” the takings of red wolves in the aggregate have a sufficient impact on interstate commerce to uphold this regulation. This is especially so where, as here, the regulation is but one part of the broader scheme of endangered species legislation. Further, § 17.84(c) is closely connected to a variety of interstate economic activities. Whether the impact of red wolf takings on any one of these activities qualifies as a substantial effect on interstate commerce is something we need not address. We have no doubt that the effect of the takings on these varied activities in combination qualifies as a substantial one. The first nexus between the challenged regulation and interstate commerce is tourism. The red wolves are part -of a $29.2 billion national wildlife-related recreational industry that involves tourism and interstate travel. See Heart of Atlanta Motel, 879 U.S. at 256, 85 S.Ct. 348 (finding it is well-established that “[c]ommerce among the States ... consists of intercourse and traffic between their citizens” (internal quotation marks omitted)). Many tourists travel to North Carolina from throughout the country for “howling events” — evenings of listening to wolf howls accompanied by educational programs. These howlings are a regular occurrence at the Alligator River National Wildlife Refuge. According to a study conducted by Dr. William E. Rosen of Cornell University, the recovery of the red wolf and increased visitor activities could result in a significant regional economic impact. See William E. Rosen, Red Wolf Recovery in Northeastern North Carolina and the Great Smoky Mountains National Park: Public Attitudes and Economic Impacts (unpublished, Joint Appendix at 633). Rosen estimates that northeastern North Carolina could see an increase of between $39.61 and $183.65 million per year in tourism-related activities, and that the Great Smoky Mountains National Park could see an increase of between $132.09 and $354.50 million per year. This is hardly a trivial impact on interstate commerce. Appellants understandably seek to criticize the Rosen study, but concede that the howling events attract interstate tourism and that red wolf program volunteers come from all around the country. Appellants argue that the tourism rationale relates only to howling events on national park land or wildlife refuges because people do not travel to private land. They reason that without tourism on private land the regulated activity does not substantially affect interstate commerce. Yet this argument misses the mark. Since reintroduction, red wolves have strayed from federal lands onto private lands. Indeed, wolves are known to be “great wanderers.” See 60 Fed.Reg. 18,940, 18,943 (1995). In 1998, it was estimated that 41 of the 75 wolves in the wild now live on private land. Because so many members of this threatened species wander on private land, the regulation of takings on private land is essential to the entire program of reintroduction and eventual restoration of the species. Such regulation is necessary to conserve enough red wolves to sustain tourism. Appellants in fact seem unmindful of the history of endangered species regulation. The Endangered Species Acts of 1966 and 1969 initially targeted conservation efforts only on federal lands, but they met with limited success. See Note, Evolution of Wildlife Legislation in the United States: An Analysis of the Legal Efforts to Protect Endangered Species and the Prospects for the Future, 5 Geo. Int’l Envtl. L.Rev. 441, 449-53 (1993). The Endangered Species Act of 1973 was motivated in part by the need to extend takings regulation beyond the limited confines of federal land. See id. at 556. The prohibition of takings on private land was critical to the overall success of the ESA in halting and reversing the near extinction of numerous species. See 16 U.S.C. § 1538(a)(1). The success of many commercial enterprises depends on some regulation of activity on private land, and interstate tourism is no exception. Tourism, however, is not the only interstate commercial activity affected by the taking of red wolves. The regulation of red wolf takings is also closely connected to a second interstate market — scientific research. Scientific research generates jobs. It also deepens our knowledge of the world in which we live. The red wolf reintroduction program has already generated numerous scientific studies. For example, the red wolf is used as a model for other carnivore reintroductions. See Donald E. Moore III & Roland Smith, The Red Wolf as a Model for Carnivore Reintroductions, 62 Symp. Zool. Soc. Lond. 263 (1990). Scientists have also studied how the red wolf affects small mammal populations and how the wolves interact with the ecosystem as a whole. See, e.g., Bryan T. Kelly, Alligator River National Wildlife Refuge Red Wolf (Canis Rufus ) Scat Analysis: Preliminary Analyses of Mammalian Prey Consumed by Year, Season, Pack, Sex, and Age (April 1994) (unpublished, Joint Appendix at 942). By studying the effects of red wolves on the ecosystem, scientists learn about the interdependence of plants and animals, as well as how other threatened species may be reintroduced in the future. Scientific research can also reveal other uses for animals — for instance, approximately 50 percent of all modern medicines are derived from wild plants or animals. See Norman Myers, A Wealth of Wild Species: Storehouse for Human Welfare 4 (1983). Protection of the red wolves on private land thus encourages further research that may have inestimable future value, both for scientific knowledge as well as for commercial development of the red wolf. The anti-taking regulation is also connected to a third market — the possibility of a renewed trade in fur pelts. Wolves have historically been hunted for their pelts. See Stanley P. Young & Edward A. Goldman, The Wolves of North America 1,165— 70 (1964). Congress had the renewal of trade in mind when it enacted the ESA. The Senate Report noted that the protection of an endangered species “may permit the regeneration of that species to a level where controlled exploitation of that species can be resumed. In such a case businessmen may profit from the trading and marketing of that species for an indefinite number of years, where otherwise it would have been completely eliminated from commercial channels.” S.Rep. No. 91-526, at 3 (1969), reprinted in 1969 U.S.C.C.A.N. 1413, 1415. The American alligator is a case in point. In 1975, the American alligator was nearing extinction and listed as endangered, but by 1987 conservation efforts restored the species. Now there is a vigorous trade in alligator hides. See Catharine L. Krieps, Sustainable Use of Endangered Species Under CITES: Is it a Sustainable Alternative?, 17 U. Pa. J. Int’l Econ. L. 461, 479-80 (1996) (explaining that many environmentalists are now encouraging the purchase of alligator products to create an incentive for protecting alligators and their habitats). Although alligator hides have more recently been a part of interstate commercial trade and red wolves were sold for their pelts primarily in the nineteenth century, this temporal difference is beside the point. It'is not for the judiciary to move from species to species, opining that species A possesses great commercial potential, but species B does not. Assessing the relative scientific value and commercial impact of alligators and red wolves is for Congress and the FWS, informed as they are by biologists, economists, and others whose expertise is best delivered to the political branches, not the courts. Finally, the taking of red wolves is connected to interstate markets for agricultural products and livestock. For instance, appellant landowners find red wolves a menace because they threaten livestock and other animals of economic and commercial value. By restricting the taking of red wolves, § 17.84(c) is said to impede economic development and commercial activities such as ranching and farming. This effect on commerce, however, still qualifies as a legitimate subject for regulation. It is well-settled under Commerce Clause cases that a regulation can involve the promotion or the restriction of commercial enterprises and development. Indeed, “[t]he motive and purpose of a regulation of interstate commerce are matters for the legislative judgment.” United States v. Darby, 312 U.S. 100,115, 61 S.Ct. 451, 85 L.Ed. 609 (1941). We recognize that “Congress can regulate interstate commerce for any lawful motive.” United States v. Sodema, 82 F.3d 1370, 1374 (7th Cir.1996). The regulation here targets takings that are economically motivated— farmers take wolves to protect valuable livestock and crops. It is for Congress, not the courts, to balance economic effects — namely whether the negative effects on interstate commerce from red wolf predation are outweighed by the benefits to commerce from a restoration of this species. To say that courts are ill-suited for this act of empirical and political judgment is an understatement. It is anything but clear, for example, that red wolves harm farming enterprises. They may in fact help them, and in so doing confer additional benefits on commerce. For instance, red wolves prey on animals like raccoons, deer, and rabbits — helping farmers by killing the animals that destroy their crops. See Robert J. Esher & Theodore R. Simons, Red Wolf Propagation on Horn Island, Miss.: Red Wolf Ecological Studies 13-16 (Sept.1993) (unpublished, Joint Appendix at 890). On Horn Island, for instance, researchers found evidence of increased shore bird nesting, likely due to the reduction in raccoon predation. See id. at 15. In Tennessee Valley Authority v. Hill (“TVA”), the Supreme Court recognized that one of Congress’s primary concerns in enacting the ESA was “the unknown uses that endangered species might have and about the unforeseeable place such creatures may have in the chain of life on this planet.” 437 U.S. 153, 178-79, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). It is within the power of Congress to regulate the coexistence of commercial activity and endangered wildlife in our nation and to manage the interdependence of endangered animals and plants in large ecosystems. It is irrelevant whether judges agree or disagree with congressional judgments in this contentious area. Given the existing economic and commercial activity involving red wolves and wildlife generally, Congress could find that conservation of endangered species and economic growth are mutually reinforcing. It is simply not beyond the power of Congress to conclude that a healthy environment actually boosts industry by allowing commercial development of our natural resources. Section 17.84(c) aims to reverse threatened extinction and conserve the red wolf for both current and future use in interstate commerce. Congress is entitled to make the judgment that conservation is potentially valuable, even if that value cannot be presently ascertained. The Supreme Court has held that the congressional decision to maintain abandoned railroad track is reasonable “even if no future rail use for it is currently foreseeable.” Preseault v. ICQ 494 U.S. 1, 19, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990). The Court reasoned that “[gjiven the long tradition of congressional regulation of railroad abandonments, that is a judgment that Congress is entitled to make.” Id. (citations omitted). Similarly, Congress has long been involved in the regulation of scarce and vital natural resources. The full payoff of conservation in the form of tourism, research, and trade may not be foreseeable. Yet it is reasonable for Congress to decide that conservation of species will one day produce a substantial commercial benefit to this country and that failure to preserve a species will result in permanent, though unascertainable, commercial loss. When enacting the ESA, various legislators expressed these exact concerns, namely that species be conserved for future scientific development: The value of this genetic heritage is, quite literally, incalculable.... From the most narrow possible point of view, it is in the best interests of mankind to minimize the losses of genetic variations. The reason.is simple: they are potential resources.... Who knows, or can say, what potential cures for cancer or other scourges, present or future, may lie locked up in the structures of plants which may yet be undiscovered, much less analyzed? ... Sheer self-interest impels us to be cautious. H.R.Rep. No. 93-412, at 4-5 (1973). Extinction, after all, is irreversible. If a species becomes extinct, we are left to speculate forever on what we might have learned or what we may have realized. If we conserve the species, it will be available for the study and benefit of future generations. In any event, it is for Congress to choose between inaction and preservation, not for the courts. Courts have uniformly upheld endangered species legislation after Lopez based on many of the same current and future connections to interstate commerce articulated here. In fact, no case has been brought to our attention that invalidates any endangered species regulation for exceeding the commerce power. In addressing a post -Lopez challenge to the constitutionality of the Bald Eagle Protection Act, 16 U.S.C. § 668 (1994), the Ninth Circuit found that “[ejxtinction of the eagle would substantially affect interstate commerce by foreclosing any possibility of several types of commercial activity: future commerce in eagles or their parts; future interstate travel for the purpose of observing or studying eagles; or future commerce in beneficial products derived either from eagles or from analysis of their genetic material.” United States v. Bramble, 103 F.3d 1475, 1481 (9th Cir.1996). Similarly, “[g]iven the interconnectedness of species and ecosystems, it is reasonable to conclude that the extinction of one species affects others and their ecosystems and that the protection of a purely intrastate species ... will therefore substantially affect land and objects that are involved in interstate commerce.” See NAHB, 130 F.3d at 1059 (Henderson, J., concurring). In addition, the District of Columbia District Court upheld application of the ESA to the fairy shrimp, a severely endangered species limited to one state. See Building Indus. Assoc, of Superior Cal. v. Babbitt, 979 F.Supp. 893 (D.D.C.1997). The court declined to “read Lopez as hamstringing Congress in such an irrational fashion in a regulatory area of such important economic, scientific and environmental dimensions.” Id. at 908. Pre-Lopez cases reached similar results. See, e.g., Hoffman Homes, Inc. v. Administrator, 999 F.2d 256, 261 (7th Cir.1993); Palila v. Hawaii Dep’t of Land and Natural Resources, 471 F.Supp. 985, 995 (D.Haw. 1979), affd, 639 F.2d 495 (9th Cir.1981). The protection of the red wolf on both federal and private land substantially affects interstate commerce through tourism, trade, scientific research, and other potential economic activities. To overturn this regulation would start courts down the road to second-guessing all kinds of legislative judgments. There is a “rational basis” as defined by Lopez for sustaining this regulation. We therefore hold that the anti-taking provision at issue here involves regulable economic and commercial activity as understood by current Commerce Clause jurisprudence. B. This regulation is also sustainable as “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Lopez, 514 U.S. at 561, 115 S.Ct. 1624. The Supreme Court in Hodel v. Indiana stated: “A complex regulatory program ... can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal. It is enough that the challenged provisions are an integral part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test.” 452 U.S. 314, 329 n. 17, 101 S.Ct. 2376, 69 L.Ed.2d 40 (1981). The FWS issued this regulation pursuant to the provisions of the Endangered Species Act, a comprehensive and far-reaching piece of legislation that aims to conserve the health of our national environment. Congress undoubtedly has the constitutional authority to pass legislation for the conservation of endangered species. See Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687,115 S.Ct. 2407,132 L.Ed.2d 597 (1995) (presupposing validity of Endangered Species Act in upholding broad definition of “harm” as including significant habitat modification); see also TVA v. Hill, 437 U.S. at 194, 98 S.Ct. 2279 (emphasizing that Congress has struck a balance in “favor of affording endangered species the highest of priorities” and upholding application of the ESA because “[o]nce the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end”). Appellants repeatedly argue that individual takings of red wolves have only an insubstantial effect on interstate commerce and therefore that the application of the regulation to private landowners is invalid. But we emphasize that the effect on commerce must be viewed not from the taking of one wolf, but from the potential commercial differential between an extinct and a recovered species. A single red wolf taking may be insubstantial by some measures, but that does not invalidate a regulation that is part of the ESA and that seeks conservation not only of any single animal, but also recovery of the species as a whole. The Supreme Court in Lopez was emphatic on this point: “ ‘where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.’ ” 514 U.S. at 558, 115 S.Ct. 1624 (alteration in original) (quoting Maryland v. Wirtz, 392 U.S. 183, 197 n. 27, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968)); see also Perez v. United States, 402 U.S. 146, 154, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971) (“Where the class of activities is regulated and that class is within the reach of federal power, the courts have no power to excise, as trivial, individual instances of the class.” (internal quotation marks omitted)). Once a species has been designated as endangered, there are by definition only a few remaining animals. Therefore, the effects on interstate commerce should not be viewed from the arguably small commercial effect of one local taking, but rather from the effect that single takings multiplied would have on advancing the extinction of a species. Each taking impacts the overall red wolf population, which has an effect on many dimensions of commerce between the states. As the Supreme Court has stated, “[i]f it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze.” Heart of Atlanta Motel, 379 U.S. at 258, 85 S.Ct. 348 (internal quotation marks omitted). Section 17.84(c) must thus be evaluated against the overall congressional goal of restoring red wolves and endangered species generally. It would be perverse indeed if a species nearing extinction were found to be beyond Congress’s power to protect while abundant species were subject to full federal regulatory power. Yet under appellants’ theory, the more endangered the species, the less authority Congress has to regulate the taking of it. According to this view, endangered species would lie beyond congressional protection because there are too few animals left to make a commercial difference. Such reasoning would eviscerate the comprehensive federal scheme for conserving endangered species and turn congressional judgment on its head. Appellants protest they do not ask us to overturn the ESA. They simply want us to excise as unconstitutional a disfavored provision that places a strain on their agricultural activities. But given that Congress has the ability to enact a broad scheme for the conservation of endangered species, it is not for the courts to invalidate individual regulations. If appellants think this regulation unwise, they must make their plea to Congress. The judiciary lacks the delegated powers of the FWS or the Environmental Protection Agency. Separation of powers principles mandate that we leave decisions such as these to Congress and to agencies with congressionally sanctioned expertise and authority. The Supreme Court itself has been mindful of the “degree of regulatory expertise necessary to [the ESA’s] enforcement.” Sweet Home, 515 U.S. at 703, 115 S.Ct. 2407. Lacking such expertise, we must decide not whether the regulation meets with judicial favor, but whether it passes constitutional muster. The specific needs of individual species, as well as the balance to be struck with landowners in or near the species’ habitats, present a classic case for legislative balancing. Here § 17.84(c) was promulgated precisely so that private landowners could take red wolves under certain circumstances. For instance, subject to certain reporting requirements, landowners can “take” wolves in self-defense, see 50 C.F.R. § 17.84(c)(4)(i), or when the wolves are found in the act of killing livestock or pets, see id. § 17.84(c)(4)(iii). Landowners can also harass wolves found on private property, provided that harassment is by methods that are not lethal or physically injurious to the red wolf, see id. § 17.84(c)(4)(iv). These provisions may ease tensions between the red wolves and private landowners. Without these special regulations, all red wolves would be subject to the absolute taking prohibition of section 9(a), placing a much greater burden on the property owner. Congress and the Service have decided that these experimental wolves can be taken under certain circumstances based on an evaluation of competing interests. How these lines should be drawn and this balance struck is grist for the legislative and administrative mill and beyond the scope of judicial competence. IV. Upholding this regulation is consistent with the “first principles” of a Constitution that establishes a federal government of enumerated powers. See Lopez, 514 U.S. at 552, 115 S.Ct. 1624. Lopez and Morrison properly emphasize that we must carefully evaluate legislation in light of our federal system of government. “The Constitution requires a distinction between what is truly national and what is truly local.” Morrison, 120 S.Ct. at 1754-55. We must particularly scrutinize regulated activity that “falls within an area of the law where States historically have been sovereign and countenance of the asserted federal power would blur the boundaries between the spheres of federal and state authority.” Brzonkala, 169 F.3d at 837 (internal quotation marks omitted). A. It is imperative to set forth at the outset the historic roles of federal and state authority in this area. The regulated activity at issue here does not involve an “area of traditional state concern,” one to which “States lay claim by right of history and expertise.” Lopez, 514 U.S. at 580, 583, 115 S.Ct. 1624 (Kennedy, J., concurring). Appellants argue that the regulation infringes on the traditional state control over wildlife. We are cognizant that states play a most important role in regulating wildlife — many comprehensive state hunting and fishing laws attest to it. State control over wildlife, however, is circumscribed by federal regulatory- power. In Minnesota v. Mille Lacs Band of Chippewa Indians, the Supreme Court recently reiterated that “[ajlthough States have important interests in regulating wildlife and natural resources within their borders, this authority is shared with the Federal Government when the Federal Government exercises one of its enumerated constitutional powers.” 526 U.S. 172, 204, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999). In Mille Lacs, the Court upheld Chippewa Indian rights under an 1837 treaty that allowed the Chippewa to hunt, fish, and gather free of territorial, and later state, regulation'. Id. These Indian treaty rights were found to be “reconcilable with state sovereignty over natural resources.” Id. at 205, 119 S.Ct. 1187. It is true that in the nineteenth century courts followed the legal precept that wildlife was the property of the state. See Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793 (1896) (upholding a Connecticut statute that prohibited the interstate transportation of game birds that had been killed within the state). But the principles in Geer were modified early in the twentieth century. See Hughes v. Oklahoma, 441 U.S. 322, 329, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979) (“The erosion of Geer began only 15 years after it was decided.”). Geer was finally overruled in 1979 by Hughes v. Oklahoma, which held that states do not own the wildlife within their borders and that state laws regulating wildlife are circumscribed by Congress’s commerce power. 441 U.S. at 326, 335, 99 S.Ct. 1727. In light of Mille Lacs and Hughes, the activity regulated by § 17.84(c) — the taking of red wolves on private property — is not an area in which the states may assert an exclusive and traditional prerogative in derogation of an enumerated federal power. Appellants next argue that the application of this regulation to private land intrudes on the state’s traditional police power to regulate local land use. Of course, states and localities possess broad regulatory and zoning authority over land within their jurisdictions. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). It is well established, however, that Congress can regulate even private land use for environmental and wildlife conservation. Courts have consistently upheld Congress’s authority to regulate private activities in order to conserve species and protect the environment. For example, in a post-Lopez challenge to CERCLA, the Eleventh Circuit held that the private, on-site, intrastate disposal of hazardous waste was within Congress’s authority to regulate because such disposal “significantly impacts interstate commerce.” United States v. Olin Corp., 107 F.3d 1506, 1510 (11th Cir.1997). In Sweet Home, the Supreme Court upheld a FWS regulation defining “harm” in the Endangered Species Act to include “significant habitat modification.” 515 U.S. at 697, 115 S.Ct. 2407. The regulation applied equally to private and public land. See id. at 692, 115 S.Ct. 2407 (challenge brought by small landowners and logging companies). Here, the FWS similarly acted within its authority in determining that conservation of the red wolf population requires prohibiting certain takings on private land surrounding the refuges. See 51 Fed.Reg. 41,790, 41,792-93 (1986). Given the history of federal regulation over wildlife and related environmental concerns, it is hard to imagine how this anti-taking regulation trespasses imper-missibly upon traditional state functions— either control over wildlife or local land use. Lopez and Morrison properly caution that States should receive judicial protection from unconstitutional federal encroachments on state matters. Yet endangered wildlife regulation has not been an exclusive or primary state function. In this way the anti-taking regulation is distinctly unlike the GFSZA, which forbade the possession of firearms in a school zone. The Supreme Court explained that the regulation of school zones was within the “general police power” retained by the states. See Lopez, 514 U.S. at 567, 115 S.Ct. 1624. The regulation of red wolf taking is also unlike the VAWA, which established a “right to be free from crimes of violence motivated by gender,” 42 U.S.C. § 13981(b) (1994). The Supreme Court found that the VAWA impeded on family law and criminal matters of traditional state concern. See Morrison, 120 S.Ct. at 1754-55. The Court noted, “[W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.” Id. at 1754. Unlike the GFSZA and the VAWA, § 17.84(c) does not invade traditional state concerns — it is simply one small part of an ongoing federal effort to preserve the scarcest natural resources for future generations. In contrast to gender-motivated violence or guns in school yards, the conservation of scarce natural resources is an appropriate and well-recognized area of federal regulation. The federal government has been involved in a variety of conservation efforts since the beginning of this century. In 1900, Congress passed the Lacey Act, which provided penalties for the taking of wildlife in violation of state laws. See Act of May 25, 1900, ch. 553, 31 Stat. 187 (codified as amended 16 U.S.C. § 701 (1994)). The Migratory Bird Treaty Act of 1918 forbade all takings of numerous bird species and explicitly preempted state laws. See 16 U.S.C. §§ 703-12. Furthermore, Congress has regulated wildlife on nonfederal property through numerous statutes, including the Bald Eagle Protection Act of 1940, which prohibits, inter alia, the taking, possession, selling, or exporting of bald eagles or any of their parts. See 16 U.S.C. §§ 668-668d (1994). Similarly, the Marine Mammal Protection Act of 1972 regulates the taking of marine mammals and restricts the importing of marine mammals and their products through an elaborate system of permits. See 16 U.S.C. §§ 1361-1421h (1994 & Supp. Ill 1997). The Magnuson Fishery Conservation and Management Act of 1976 provides national standards for fishery conservation and management along with an elaborate system of enforcement. See 16 U.S.C. §§ 1801-83 (1994 & Supp. Ill 1997). The Supreme Court has repeatedly upheld these statutes and the conservation efforts of Congress with regard to a variety of animal species. In Missouri v. Holland, the Court upheld the Migratory Bird Treaty Act as a necessary and proper means of executing Congress’s treaty power. The conservation of endangered wildlife, Justice Holmes stated, was a “matter! ] of the sharpest exigency for national weh being.” 252 U.S. 416, 432-33, 40 S.Ct. 382, 64 L.Ed. 641 (1920). In 1977, the Supreme Court held that Congress had the power under the Commerce Clause to grant federal fishing licenses for use in state waters, thereby preempting conflicting state laws. See Douglas v. Seacoast Products, Inc., 431 U.S. 265, 97 S.Ct. 1740, 52 L.Ed.2d 304 (1977). Later in Andrus v. Allard, the Court emphasized that the “assumption that the national commerce power does not reach migratory wildlife is clearly flawed.” 444 U.S. 51, 63 n. 19, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979). Post-Lopez cases addressing wildlife conservation statutes do not call these cases into question, but rather uphold the exercise of agency power over private land use in order to conserve endangered species. In Sweet Home, for example, the Court upheld the Service’s broad definition of “harm” in the ESA as including “significant habitat modification.” 515 U.S. at 708, 115 S.Ct. 2407. The lower courts have followed suit, both before and after Lopez. For example, in United States v. Hartsell, this court reaffirmed that Congress retains authority to regulate even non-navigable waters under the Commerce Clause. 127 F.3d 343, 348 & n. 1 (4th Cir.1997). The Ninth Circuit reaffirmed that the Bald Eagle Protection Act is a valid exercise of the commerce power because Congress had a rational basis for concluding that “extinction of the eagle would have a substantial effect on interstate commerce.” See Bramble, 103 F.3d at 1482. In sum, it is clear from our laws and precedent that federal regulation of endangered wildlife does not trench imper-missibly upon state powers. Rather, the federal government possesses a historic interest in such regulation — an interest that has repeatedly been recognized by the federal courts. B. It is important not simply to point to the historic fact of federal efforts in the area of resource conservation. Courts have respected the justifications for these federal efforts as well. The Supreme Court has recognized that protection of natural resources may require action from Congress. This general point holds true where endangered species are concerned. Species conservation may unfortunately impose additional costs on private concerns. States may decide to forego or limit conservation efforts in order to lower these costs, and other states may be forced to follow suit in order to compete. The Supreme Court has held that Congress may take cognizance of this dynamic and arrest the “race to the bottom” in order to prevent interstate competition whose overall effect would damage the quality of the national environment. In Hodel v. Virginia Surface Mining and Reclamation Ass’n, the Court upheld provisions of the Surface Mining Control and Reclamation Act of 1977 that regulated intrastate mining activities. 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981). The Court deferred to a congressional finding that nationwide standards were “essential” to insuring that competition in interstate commerce among sellers of coal would not be used to undermine environmental standards. See id. at 281-82, 101 S.Ct. 2352. Congress expressed concern that such competition would disable states from improving and maintaining “adequate standards on coal mining operations within their borders.” Id. (internal quotation marks omitted). The Court emphasized, “The prevention of this sort of destructive interstate competition is a traditional role for congressional action under the Commerce Clause.” Id. at 282, 101 S.Ct. 2352. In Darby, the Court upheld a prohibition of the interstate shipment of goods produced in violation of the Fair Labor Standards Act. 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609. The Court reasoned that “interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard labor conditions.” Id. at 115, 61 S.Ct. 451. A desire for uniform standards also spurred enactment of the ESA: “[Protection of endangered species is not a matter that can be handled in the absence of coherent national and international policies: the results of a series of unconnected and disorganized policies and programs by various states might well be confusion compounded.” See H.R.Rep. No. 93-415, at 5. If we struck down this regulation under the commerce power, we would throw into question much federal environmental legislation. This would be a portentous step, leaving many environmental harms to be dealt with through state tort law. Such a movement might well subject interstate companies to a welter of conflicting obligations. If Congress is constitutionally forbidden from even enacting uniform environmental rules, the confusion for interstate commercial enterprises might increase exponentially. In examining the justifications for federal action in this area it is important to understand the ESA as a culmination of a long legislative process of trial and error. This font of experience is something courts lack. As we noted earlier, preliminary efforts at endangered species regulation were widely viewed as inadequate precisely because they did not control private activities. The Endangered Species Act of 1966 established a National Wildlife Refuge System and prohibited disturbing animals or habitat within the System. See Pub.L. No. 89-669, § 4, 80 Stat. 926. The Endangered Species Act of 1969 required the Secretary of the Interior to develop a list of endangered species, and prohibited the importation of these animals or any of their by-products without a permit. See Pub.L. No. 91-135, § 3(a), § 2, 83 Stat. 275. These statutes also required federal agencies to conserve species “insofar as is practicable,” § 1(b), 80 Stat. at 926, and to the “extent practicable,” § 3(a), 83 Stat. at 275. In response to concerns that these Acts had little impact, Congress amended the ESA in 1973 to abandon the practicability standards and to prohibit takings on private land. See 16 U.S.C. § 1538. According to the General Accounting Office, in 1993 there were 781 species listed under the ESA — over 90 percent of these species have some or all of their habitat on nonfed-eral lands. Nearly three-fourths of the listed species had over 60 percent of their habitat on nonfederal lands. Courts cannot simply ignore or negate congressional efforts to devise a more effective solution to a significant national problem. C. This regulation does not blur the boundaries between federal and state responsibility for the conservation of species. Disturbing the balance of federal and state power was a primary concern in both Lopez and Morrison. In Lopez, Justice Kennedy argued that one of the great dangers of the federal government regulating areas of traditional state concern is that “the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory.” 514 U.S. at 577, 115 S.Ct. 1624 (Kennedy, J., concurring). In Brzonkala this court observed that because the VAWA supplemented and interfered with state remedies, “the citizens of the Statesfwould] not know which sovereign to hold accountable for any failure to address adequately gender-motivated crimes of violence.” 169 F.3d at 842. Section 17.84(c) is distinguishable from both the GFSZA and the YAWA because the ultimate responsibility for the red wolf lies with the federal government. The regulation outlines the responsibilities and obligations of landowners with regard to any red wolves on their property. See 50 C.F.R. § 17.84(c). The FWS has also distributed fact sheets about the wolves and held meetings with local residents to explain the regulation and the reintroduction. From the time of reintroduetion until 1994, North Carolina had no law or regulation concerning the red wolf. A recently passed North Carolina law bears a title starkly at odds with the federal regulation: “An Act to Allow the Trapping and Killing of Red Wolves by Owners of Private Land.” 1994 N.C. Sess. Laws Ch. 635. Unlike the GFSZA and the VAWA, § 17.84(c) does not duplicate or supplement state and local regulation. Quite to the contrary, it simply provides federal support for an endangered species. The dangers of blurring are minimal where the federal role in the protection of endangered species has traditionally been so clear. Congress, however, did not simply sweep away the role of the states by enacting a national solution to the problem of red wolf conservation. The ESA and § 17.84(c) embody principles of cooperative federalism and seek to involve the states in the conservation effort. Such cooperative federalism does not blur state and federal roles. First, a species is listed as endangered or threatened only after reviewing “those efforts, if any, being made by any State ... to protect such species.” 16 U.S.C. § 1533(b)(1)(A). Second, once the species has recovered and is “delisted,” management responsibility will return to the states. See id. § 1532(3) (defining “conservation” as “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary”). States can then regulate the species for hunting and resource management as it sees fit. For instance, in Minnesota, citizens have expressed interest in hunting the grey wolf, which is expected to be delisted soon and its management returned to the state. See Feds Again Delay Wolf Management Plan: Officials Had to Do Some Rework After Legislature Failed to Pass State Plan, Star-Tribune (Minneapolis), Nov. 29, 1999, at B7 (explaining that wolf numbers were strong enough to drop federal protection, but that the Minnesota legislature failed to pass a management plan for the wolves). Indeed, there is evidence that the recovery of the red wolf could allow a renewed trade in wolf pelts. For example, in the Northwestern Territories of Canada where wolves are plentiful, a hunter can command about $300 per pelt. See Fred Langan, Hunters on Snowmobiles Cut Down Wolf Count in N.W.T., Calgary Herald, Mar. 3,1998, at A7. This regulation simply does not implicate any “immediate and concrete” federalism concerns by negating state contributions to species protection. Brzonkala, 169 F.3d at 840. Quite to the contrary, invalidating this regulation would deal a damaging blow to the essential place of the enumerated powers in preserving scarce resources of all sorts for the common good. D. Unlike the statutes in Lopez and Brzon-kala, § 17.84(c) can be upheld while observing principled limitations on federal power. The regulation applies only to a single limited area- — endangered species. It does not in any way grant Congress “an unlimited police power inconsistent with a Constitution of enumerated and limited federal powers.” Brzonkala, 169 F.3d at 852. Nor does the regulation “obliterate the Constitution’s distinction between national and local authority.” Morrison, 120 S.Ct. at 1752. In Lopez, the Court rejected the “costs of crime” and “national productivity” justifications for the GFSZA, because under these theories it was “difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically haye been sovereign.” 514 U.S. at 564,115 S.Ct. 1624. But these concerns are simply not implicated by § 17.84(c). Rather, the ESA and this regulation in particular permit the exercise of federal power only to conserve those species that are “endangered” or “threatened.” The Secretary must determine whether a species is endangered or threatened “solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species.” 16 U.S.C. § 1533(b)(1)(A). Only after determining that a species is endangered or threatened can Congress regulate it. The rationale for upholding § 17.84(c), and the ESA generally, is restricted to the special relationship between endangered species and interstate commerce as drawn in Part III. It is not a connection that can be drawn outside of the endangered species context to support federal regulation of just any local or intrastate object with a medical, scientific, or economic value. The rationale for this regulation thus stops far short of conferring upon Congress a broad police power. It is instead appellants’ arguments for invalidating this regulation that go too far. If the federal government cannot regulate the taking of an endangered or threatened species on private land, its conservation and preservation efforts would be limited to only federal lands. A ruling to this effect would place in peril the entire federal regulatory scheme for wildlife and natural resource conservation. V. Finally, we offer a brief response to the views of our dissenting brother. According to the dissent, Lopez and Morrison require us to hold that the regulation at issue exceeds Congress’s commerce power. We cannot accept this view. To invalidate this regulation would require courts to move abruptly from preserving traditional state roles to dismantling historic federal ones. The dissenting opinion regrettably offers no legal basis for taking such a leap. Instead, the dissent expresses a bevy of unsupported opinions. It offers its conclu-sory belief that the taking of a red wolf does not constitute an economic activity. Post at 507. It announces with some confidence that trade in wolf pelts will never revive. Post at 508-09. And it dismisses the available studies on the red wolfs ecological and commercial value without offering the slightest bit of evidence to contradict them. Post at 506-07. Where exactly the dissent derives its view of the inconsequential status of this species is a mystery to us. But it cannot be that the mere expression of judicial derision for the efforts of the democratic branches is enough to discard them. There should be no doubt about the implications of the dissenting opinion. Our dissenting colleague would rework the relationship between the judiciary and its coordinate branches. It is apparent that the dissent regards § 17.84(c) as ill-advised. That is fair enough, but a judge’s view of the wisdom of enacted policies affords no warrant for declaring them unconstitutional. See TVA v. Hill, 437 U.S. at 195, 98 S.Ct. 2279 (“[I]n our constitutional system the commitment to the separation of powers is too fundamental for us to pre-empt congressional action by judicially decreeing what accords with ‘common sense and the public weal.’ Our Constitution vests such responsibilities in the political branches.”). In recognition of the fact that the wisdom of legislation is different from its constitutionality, courts have always started with a presumption in favor of an enactment’s constitutionality. Lopez and Morrison have not shifted this presumption. In fact, they have care-fully maintained it. See Morrison, 120 S.Ct. at 1748 (“Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.”); Lopez, 514 U.S. at 568, 115 S.Ct. 1624. Our dissenting brother proceeds on the quite contrary premise that the burden now rests with those who wish to uphold legislation. We know of no other way to interpret the dissent’s view that the empirical underpinnings of this regulation are inadequate. Reversing the presumption in favor of constitutionality plunges our dissenting brother into the thick of political controversy. As the arguments and briefs in this case attest, the matter in question involves a rather traditional struggle between property owners on the one hand and environmentalists on the other. Both sides in this political stand-off have their legitimate points to make. Property owners understandably seek more freedom to take wolves on their property. Those opposing them seek to impress the fact that even private property has historically been imbued with public responsibilities. Why the judicial branch should place its thumb on either side of this old political scale is simply beyond our comprehension. Both concern for property rights and concern for the environment play important roles in shaping political decisions. But neither can automatically be allowed to grind the nation’s commerce power to a constitutional halt. An indiscriminate willingness to constitutionalize recurrent political controversies will weaken democratic authority and spell no end of trouble for the courts. This danger is made more acute by the failure of the dissent to adopt any limiting principle for its approach. The dissent dismisses the regulation at issue as implicating nothing more than “a handful of animals, if even that, in one small region of one state.” Post at 508. It declares that because there are only 41 wolves on private land, “the killing of even all 41 of the estimated red wolves” cannot have a substantial effect on interstate commerce. Post at 507. Far from being a limiting approach, the dissent’s formulation is one of unprecedented breadth. It holds in essence that an endangered species can have no effect on interstate commerce on account of its endangered status and that scarce resources are on account of their scarcity too trivial to justify protection. The dissent further ignores the fact that the scarcest of natural resources, be they wildlife or mineral, will often be found in one limited locality. For the federal courts to constitutionally disable the federal government from acting in the face of scarcity is to deal a severe blow to national strength. Sapping the national ability to safeguard natural resources is not a course supported by precedent. After Lopez, the Supreme Court upheld a broad interpretation of the Endangered Species Act, see Sweet Home, 515 U.S. 687, 115 S.Ct. 2407, 132 L.Ed.2d 597. And in Morrison the Supreme Court cited Wickard v. Filbum and Heart of Atlanta Motel for the proposition that the authority of the national government to regulate intrastate economic activity in proper circumstances had not been dismembered. 120 S.Ct. at 1749-50. Yet in the truncated legal universe of the dissent, the national interest in the development of natural resources counts for naught, and these cases and propositions have little, if any, role to play. Finally, the dissenting opinion works a rent in the fabric of Our Federalism. Striking down this regulation will turn federalism on its head. Lopez and Morrison rightly emphasized the fact that the federal involvement with local school zones and the creation of civil causes of action to prevent gender-motivated violence encroached on what are traditional state functions. By contrast, the preservation of endangered species is historically a federal function. Lopez and Morrison recognized the importance of judicial review under the Commerce Clause. But, unlike the dissent, those cases set boundaries to that review and did not transform the reviewing function from a shield protecting state activities into a sword dismembering a long recognized federal one. It is as threatening to federalism for courts to erode the historic national role over scarce resource conservation as it is for Congress to usurp traditional state prerogatives in such areas as education and domestic relations. Courts seeking to enforce the structural constraints of federalism must respect the balance on both sides. Of course natural resource conservation is economic and commercial. If we were to decide that this regulation lacked a substantial effect on commerce and therefore was invalid, we would open the door to standardless judicial rejection of democratic initiatives of all sorts. Courts need not side with one party or the other on the wisdom of this endangered species regulation. We hold only as a basic maxim of judicial restraint that Congress may constitutionally address the problem of protecting endangered species in the manner undertaken herein. The political, not the judicial, process is the appropriate arena for the resolution of this particular dispute. The judgment of the district court is accordingly AFFIRMED. . The Service notes that the red wolf population lies between 53 and 101 wolves, and estimates that the actual population is between 70 and 80 animals. The district court also found that approximately 75 red wolves were living in the wild in eastern North Carolina. See Gibbs v. Babbitt, 31 F.Supp.2d 531, 534 (E.D.N.C.1998). . While the regulation might also reflect a moral judgment concerning the importance of rehabilitating endangered species, this does not undermine the economic basis for the regulation. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 257, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) ("Congress was not restricted by the Tact that the particular obstruction to interstate commerce with which it was dealing was also deemed a moral and social wrong.”). . The Supreme Court has admonished us that "[t]he task of a court that is asked to determine whether a particular exercise of congressional power is valid under the Commerce Clause is relatively narrow. The court must defer to a congressional finding that a regulated activity affects interstate commerce, if there is any rational basis for such a finding.” Hodel v. Virginia Surface Mining & Reclamation Assoc., 452 U.S. 264, 276, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981). While there are no formal congressional findings that the ESA affects interstate commerce, such findings are neither necessary nor sufficient to sustain a statute or regula-lion. In Lopez, the Court said that "Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce.” 514 U.S. at 562, 115 S.Ct. 1624; see also Perez v. United States, 402 U.S. 146, 156, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971) (particularized findings are not necessary for Congress to legislate). Further, in Morrison, the Court emphasized in the face of voluminous congressional findings that "the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation.” 120 S.Ct. at 1752. In evaluating whether there is a rational basis for the promulgation of a statute or regulation under the commerce power, we often consider congressional committee findings. See Lopez, 514 U.S. at 562, 115 S.Ct. 1624. Here, Congress has provided numerous sources of informal findings. Committee reports and legislative debates have emphasized the importance of endangered species to interstate commerce. We independently evaluate the constitutionality of this regulation, but we also take account of congressional judgment and the judgment of the agency designated to implement the statute. . Inlervenor-appellees Defenders of Wildlife argue that this regulation can also be upheld under the treaty power. See U.S. Const, art. VI., cl. 2; U.S. Const, art. II, § 2, cl. 2. Because we hold that § 17.84(c) is valid under the Commerce Clause, we need not address this alternative argument. . Emphasizing the political nature of this particular dispute does not consign Commerce Clause adjudications to the political processes, but rather takes account of the fact that judicial review is limited by the due respect that we must have for the decisions of a coordinate branch. See Morrison, 120 S.Ct. at 1748-49. It is therefore both amusing and incorrect for the dissent to suggest that upholding this endangered species regulation would somehow render Lopez or Morrison an "aberration,” post at 508. The dissent ignores the significant differences between those cases and the present one — differences that we have chronicled in detail and with which the dissent has made no effort to deal.

Gibbs v. Babbitt

LUTTIG, Circuit Judge, dissenting: I wrote extensively on the Supreme Court’s decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and on the Commerce Clause in the wake of that decision, in Brzonkala v. Virginia Polytechnic Institute, 169 F.3d 820 (4th Cir.1999). And the Supreme Court has now provided even further guidance for the lower courts through its decision in Brzonkala, which is ultimately styled in that court as United States v. Morrison, — U.S. ——•, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). If one holds the views expressed by the Supreme Court majority in Lopez and Morrison, and by our court in Brzonkala, a belabored discussion of the implications of those decisions for the regulation at issue before us today is not necessary. Here, the Fish and Wildlife Service has promulgated a regulation that prohibits private landowners from shooting, wounding, killing, trapping, or otherwise harming the canis rufus, or the red wolf, even when the wolves are on the private landowners’ property and threatening their crops and livestock. However, in what the majority characterizes as an act of beneficence by the government to benefit the landowners, the government does allow a property owner — even on his own property — to kill a wolf if the wolf is about to kill the property owner himself or his family. Ante at 488. The question presented to us for decision is not “whether the national government can act to conserve scarce natural resources of value to our entire country,” ante at 486, whether we should “hold as a basic maxim of judicial restraint that Congress may constitutionally address the problem of protecting endangered species,” id. at 506, or whether our decision today will “work[ ] a rent in the fabric of Our Federalism,” id. at 505, “turn federalism on its head,” id., or “open the door to standardless judicial rejection of democratic initiatives of all sorts,” id. at 506. Rather, the simple (and frankly, considerably less incitant) question of law for us to decide is whether, assuming its validity under statute, this one particular Fish and Wildlife regulation exceeds Congress’ power under the Commerce Clause. As the majority recites, there are an estimated 41 red wolves resident on private property and 75 red wolves total, in eastern North Carolina. The majority sustains the Fish and Wildlife’s regulation unhesitatingly on the ground that the taking of the 41 red wolves that might occur as property owners attempt to protect themselves and their families, their property, their crops, and their livestock from these wolves, will have a “substantial effect” on interstate commerce. This substantial effect on interstate commerce comprises, according to the majority, four separate effects on such commerce, each of which the majority views as “substantial.” First, the majority concludes, in exclusive reliance upon a Cornell University professor’s unpublished study entitled “Red Wolf Recovery in Northeastern North Carolina and the Great Smoky Mountains National Park,” that “[m]any tourists travel to North Carolina from throughout the country for ‘howling events’ — evenings of listening to wolf howls accompanied by educational programs,” id. at 493-94, and thus that the taking of these wolves will have a substantial effect on the interstate commercial industry of tourism. Second, the majority concludes, largely in reliance, not upon their substantive conclusions, but rather upon the fact of the generation of two articles — “The Red Wolf as a Model for Carnivore Reintroductions,” which was published in the Symposium of the Zoological Society of London, and the 1994 unpublished study “Alligator River National Wildlife Refuge Red Wolf (Canis Rufus) Scat Analysis” — that the taking of these red wolves will have a substantial effect on the “interstate market” of “scientific research.” Ante at 494-95. Third, the majority concludes, largely on the strength of an article that appears in the University of Pennsylvania Journal of International Economic Law, that the taking of these wolves will have a substantial effect on the majority-anticipated resurrection of an interstate trade in fur pelts. Ante at 495. In reliance upon an article that appeared two years ago in the Calgary Herald entitled “Hunters on Snowmobiles Cut Down Wolf Count in N.W.T.,” the majority observes that “[f]or example, in the Northwestern Territories of Canada where wolves are plentiful, a hunter can command about $300 per pelt.” Ante at 503. The majority frankly acknowledges that there has not been a trade in wolf pelts since the 1800s, ante at 495, but, to the majority, “this temporal difference is beside the point.” Id. Finally, in reliance upon yet another unpublished study by Robert Esher and Theodore Simons entitled “Red Wolf Propagation on Horn Island, Mississippi: Red Wolf Ecological Studies,” and by analogy to the finding therein of “increased shore bird nesting, likely due to the reduction in raccoon predation,” ante at 495, the majority concludes that the red wolves which the fanners and landowners have heretofore thought threatened their families, their crops, and their livestock, actually help the farmers, by killing the animals that destroy the farmers’ crops, and thereby substantially affect interstate commerce. Ante at 495-96. That these conclusions are not even arguably sustainable under Lopez, Morrison, and Brzonkala, much less for the reasons cobbled together by the majority, is evident from the mere recitation of the conclusions. The killing of even all 41 of the estimated red wolves that live on private property in North Carolina would not constitute an economic activity of the kind held by the Court in Lopez and in Morrison to be of central concern to the Commerce Clause, if it could be said to constitute an economic activity at all. Morrison, 120 S.Ct. at 1750 (“[A] fair reading of Lopez shows that the noneconomic, criminal nature of the conduct at issue was central to our decision in that case.”). It is for this reason that the majority’s attempted aggregation is impermissible: “While we need not adopt a categorical rule against aggregating the effects of any non-economic activity in order to decide these cases, thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.” 120 S.Ct. at 1751 (citations omitted). But even assuming that such is an economic activity, it certainly is not an activity that has a substantial effect on interstate commerce. The number of inferences (not even to mention the amount of speculation) necessary to discern in this activity a substantial effect on interstate commerce is exponentially greater than the number necessary in Lopez to show a substantial effect on interstate commerce from the sale of guns near schools or in Momson to show a substantial effect on interstate commerce from domestic assault. The number (and the speculation) is even greater than that necessary in Wiekard, v. Filbum, 317 U.S. Ill, 63 S.Ct. 82, 87 L.Ed. 122 (1942). And, it bears reminding, the regulated activity in Lopez and Wiekard at least was in some sense economic in character. In a word, the expansive view of the Commerce power expressed by the majority today is closely akin to that separately expressed by Justice Breyer in his dissent in Lopez and Justice Souter in his dissent in Morrison, and certainly more closely akin to those dissenting Justices’ views than it is to the view of the Lopez majority in Lopez and Morrison. Indeed, all in all, it is a view far more expansive than that expressed by any of the dissenting Justices in either Lopez or Morrison — a fact confirmed by the dissents in Mom-son, ironically the case for which the majority herein unnecessarily held this case in abeyance. See Order of April 21, 2000 (Luttig, J., dissenting from abeyance order). It goes without saying that it is much more like that of the dissent in Brzonkala than that of the majority in our court. See Brzonkala v. Virginia Polytechnic Institute, 169 F.3d 820, 905 (Motz, J., dissenting). Indeed, if the Supreme Court were to render tomorrow the identical opinion that the majority does today (not necessarily the decision, but the opinion, worded capaciously as it is), both Lopez and Morrison would be consigned to aberration. And, by deciding this case as it does, and on the particular reasoning that it does, the majority would have all but consigned to aberration our own decision in Brzonkala were it not for the Supreme Court’s recent affirmance of that decision. I would invalidate this particular agency regulation under Lopez, Momson, and Brzonkala, and instead recognize as the aberration that action of invalidation, rather than the opinions in Lopez, Morrison, and Brzonkala, as does the majority. Compare Momson, 120 S.Ct. at 1773-74 (Souter, J., dissenting) (similarly to majority, characterizing Lopez and Morrison, and by implication Brzonkala, as aberrational vis-a-vis the sixty years of jurisprudence predating Lopez and predicting that Lopez and Momson will not be “enduring law”); see also Momson, 120 S.Ct. at 1777-78 (Breyer, J., dissenting) (“And even were I to accept Lopez as an accurate statement of the law, which I do not....”). I would do so without any fear whatsoever that such “would place in peril the entire federal regulatory scheme for wildlife and natural resource conservation,” ante at 504, as the majority over-rhetorically predicts would result from the invalidation of this lone regulation. No more so than in Brzonkala will “[mjaintaining the integrity of the enumerated powers” by invalidating this single regulation “mean that statutes will topple like falling dominos.” Brzonka-la, 169 F.3d at 897 (Wilkinson, J., concurring). While it could be lost in a reading of the majority opinion, we do not address here Congress’ power over either the channels or instrumentalities of interstate commerce. We do not address activity that is interstate in character. We do not address in this case a statute or a regulation with an express interstate commerce jurisdictional requirement, which would all but ensure constitutional validity. We do not have before us an activity that has obvious economic character and impact, such as is typically the case with non-wildlife natural resources, and even with other wildlife resources. We are not even presented with an activity as to which a plausible case of future economic character and impact can be made. To the contrary, we are confronted here with an administrative agency regulation of an activity that implicates but a handful of animals, if even that, in one small region of one state. An activity that not only has no current economic character, but one that concededly has had no economic character for well over a century now. An activity that has no foreseeable economic character at all, except upon the baldest (though admittedly most humorous) of speculation that the red wolf pelt trade will once again emerge as a centerpiece of our Nation’s economy. And, importantly, an activity that Congress could plainly regulate under its spending power and under its power over federal lands, regardless. Judge Wilkinson, for his part, has written that he regards Lopez, Brzonkala, and presumably now Morrison, as examples in a “spate of decisions” of “contemporary judicial activism,” Brzonkala, 169 F.3d 820, 892-93 (Wilkinson, J., concurring), as he similarly regards the Supreme Court’s decisions in Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997); City of Boeme v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997); Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); and New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). See id. The dissenting Justices in both Lopez and Morrison similarly regal'd these decisions. See, e.g., Morrison, 120 S.Ct. at 1759 (Souter, J., dissenting); see also Morrison, 120 S.Ct. at 1773-74 (Breyer, J., dissenting). But I do not regard these decisions as such, and I certainly do not understand the majority of the Supreme Court to so regard these decisions. Nor, in the wake of Lopez and Morrison, can I accept my colleagues’ view of the appropriate role of the judiciary in Commerce Clause disputes. As Judge Wilkinson’s view of Lopez mirrors that of the dissenters in Lopez and Morrison, so also does my colleagues’ view of the judiciary’s role in Commerce Clause conflicts mirror that of the Lopez and Morrison dissenters. The majority herein, like the dissents in both Lopez and Momson, takes the view that the political processes are the safeguard against federal encroachment upon the states. Thus, the majority concludes its opinion: “The political, not the judicial, process is the appropriate arena for the resolution of this particular dispute.” See ante at 506. Accord Morrison, 120 S.Ct. at 1768-69 (Souter, J., dissenting) (“The defect, in essence, is the majority’s rejection of the Founders’ considered judgment that politics, not judicial review, should mediate between state and national interests ....”); id. at 1769 (“As with ‘conflicts of economic interest,’ so with supposed conflicts of sovereign political interests implicated by the Commerce Clause: the Constitution remits them to politics.”); id. (Breyer, J., dissenting) (citing Souter, J., dissenting, in Morrison; Stevens, J., dissenting, in Kimel v. Florida Bd. of Regents, 528 U.S. -, 120 S.Ct. 631, 145 L.Edüd 522 (2000); and Black-mun, J., for the court, in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985)). The majority of the Supreme Court in Lopez and Morrison has left no doubt, however, that the interpretation of this clause of the Constitution, no less so than any other, must ultimately rest not with the political branches, but with the judiciary. See Lopez, 514 U.S. 549, 557 n. 2, 115 S.Ct. 1624, 131 L.Ed.2d 626 (“[Wjhether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.”) (quoting Heart of Atlanta Motel v. United States, 379 U.S. 241, 273, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (Black, J., concurring)); Morrison, 120 S.Ct. at 1753 n. 7 (“Departing from their parliamentary past, the Framers adopted a written Constitution that further divided authority at the federal level so that the Constitution’s provisions would not be defined solely by the political branches nor the scope of legislative power limited only by public opinion and the legislature’s self-restraint. See, e.g., Mar-burg v. Madison, 1 Cranch 137, 176, 2 L.Ed. 60 (1803) (Marshall, C.J.).”). Accordingly, I would faithfully apply in this case the Supreme Court’s landmark decisions in Lopez and Morrison, as I would in any other case. The affirmative reach and the negative limits of the Commerce Clause do not wax and wane depending upon the subject matter of the particular legislation under challenge.

Maryland Conservation Council, Inc. v. Gilchrist

HARRISON L. WINTER, Chief Judge: The Maryland Conservation Council and two other citizens’ groups sought to enjoin officials of Montgomery County, Maryland from authorizing further construction of a highway allegedly designed to pass through Seneca Creek State Park. The plaintiffs alleged, inter alia, that the County’s construction program violated the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4331 et seq. (1982). Without hearing oral argument, the district court granted the defendants’ motion to dismiss. We reverse in part and affirm in part. I. Before proceeding with a statement of the facts, we must decide whether the district court’s order should be treated as the entry of summary judgment or the granting of a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), Fed.R. Civ.P. The question arises because the district court took notice of materials other than pleadings filed with the motion to dismiss. The parties agree that the district court decided only a motion to dismiss, and we also treat its ruling as one sustaining a motion to dismiss, especially because the district court did not purport to give notice to the parties that it would proceed under Rule 56 or to give them an opportunity to present “all materials made pertinent to a motion for summary judgment by Rule 56.” Rule 12(b). It follows that for purposes of this appeal we treat as proved all facts well pleaded. They are as follows: Seneca Creek State park is located in Montgomery County, Maryland, near Gaithersburg and Germantown. It comprises over 6,000 acres and follows Great Seneca Creek for about 12 miles. The State of Maryland acquired much of the park land with federal funds, including $6.2 million received from the Department of the Interior. The area in which the park is located has existing and future deficits in day-use recreational facilities. In 1971, Montgomery County began planning to construct the “Great Seneca Highway” through the park to relieve traffic congestion in the Gaithersburg-Germantown area. Because the project had been considered for federal-aid highway funds, the Department of Transportation and the County prepared a draft environmental impact statement (EIS) in 1983. The final EIS is still pending. Although the County received $245,000 in federal funds for planning the highway, there is no allegation that it has sought additional federal financing. There is, however, an allegation that additional federal funds may be sought, i.e., that “additional ... Federal Aid, will be pursued to the extent feasible.” The plaintiffs and other environmentalists concede that some highway access through the park is essential. Controversy exists, however, over which route, or “alignment,” the highway should take. Environmentalists, the National Park Service, and the Environmental Protection Agency have urged that the County should upgrade existing highways so as to hold to a minimum damage to the park. The County did begin improvements on existing roads in the vicinity of the park, but it also began authorizing road construction along Alternate 2A, a route preferred by it that did not coincide with existing highways. If extended through the park, Alternate 2A would take three times as much park land as any other alternative route. Two federal agencies, the National Park Service and the Environmental Protection Agency, have expressed dissatisfaction with Alternate 2A, the National Park Service characterizing it as having “the most severe, negative effects” on the park. Private real estate developers, who have undertaken to construct real estate projects in the vicinity of Alternate 2A, have been required to develop the two segments of Alternate 2A entering and leaving the park, but not the middle segment, which would actually run through the park. The County has required them to dedicate to the County the right-of-way for that part of Alternate 2A passing through their properties and to design and grade four lanes and pave two lanes along the right-of-way. The County claims that this paving is merely for “access” to each subdivision. By this means, construction of approximately two miles, or 26% of the total, of Alternate 2A has already commenced on both sides of the park. In 1985, the Maryland Conservation Council and two other citizens’ groups filed suit against officials of Montgomery County, seeking to enjoin further construction along Alternate 2A other than that strictly needed for local access. The complaint alleges that the County has violated NEPA by authorizing construction of segments of the highway before the Department of Transportation has issued its final EIS, since construction will require federal approvals under § 404 of the Federal Water Pollution Control Act, 33 U.S.C. § 1344 (the Water Act), under § 6(f) of the Land and Water Conservation Fund Act, 16 U.S.C. § 460l-8(f)(3) (the Conservation Act), and under § 4(f) of the Department of Transportation Act, 49 U.S.C. § 303 (the Transportation Act), all of which allegedly render the construction a major federal action. The complaint also asserts that the County has directly violated Section 4(f) of the Transportation Act, 49 U.S.C. § 303, which requires the Secretary of Transportation to make certain environmental determinations before approving a transportation program requiring the use of a public park. Finally, the complaint alleges that the County has directly violated Section 6(f) of the Conservation Act, 16 U.S.C. § 460/ -8(f)(3), which requires the Secretary of the Interior to approve any “conversion” from recreational use of park land that was acquired with federal aid, such as Seneca Creek Park. The district court granted the County’s motion to dismiss all three counts for failure to state a claim upon which relief could be granted. We reverse as to NEPA but affirm as to the Transportation Act and the Conservation Act. II. We turn first to plaintiffs’ claim under NEPA. That statute requires an EIS for “major Federal actions” that significantly affect the environment, 42 U.S.C. § 4332(C), and authorizes the courts to enjoin federal actions that do not comply, see West Virginia Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232 (4 Cir.1971). See also 40 C.F.R. § 1506.1. The district court held that the Great Seneca Highway is not a “federal” action; it therefore dismissed the NEPA count for failure to state a claim. A non-federal project is considered a “federal action” if it cannot “begin or continue without prior approval of a federal agency.” Biderman v. Morton, 497 F.2d 1141, 1147 (2 Cir.1974); Foundation on Economic Trends v. Heckler, 756 F.2d 143, 155 (D.C.Cir.1985). “Cases finding ‘federal’ action emphasize authority to exercise discretion over the outcome.” W. Rodgers, Environmental Law § 7.6, at 763 (1977). We conclude that the Great Seneca Highway is a federal action within the meaning of NEPA. Because the highway, wherever located, must inevitably cross Seneca Creek State Park, a park established with a grant of substantial federal funds, the approval of the Secretary of the Interior for conversion of park land to other than public outdoor recreation uses will be required. Conservation Act § 6(f), 16 U.S.C. § 460l-8(f)(3). In addition, it is alleged that the section of the highway which will cross the park will impinge on wetlands when it crosses Seneca Creek so that a permit from the Secretary of the Army to dredge wetlands will be required pursuant to the provisions of § 404 of the Water Act, 33 U.S.C. § 1344. Finally, if defendants seek additional federal funds for the construction of the highway, they will be required to obtain the approval of the Secretary of Transportation for the use of park land for a transportation program under § 4(f) of the Transportation Act, 49 U.S.C. § 303(c). In each instance, each Secretary will be required to consider a final EIS before exercising his or her authority. It is certain that this must be done by the Secretary of the Interior; it is almost certain that this must be done by the Secretary of the Army; and it is possible that this must be done by the Secretary of Transportation. Because of the inevitability of the need for at least one federal approval, we think that the construction of the highway will constitute a major federal action. Because it is inevitable that the construction of the highway will involve a major federal action, it follows that compliance with NEPA is required before any portion of the road is built. This conclusion effectuates the purpose of NEPA. The decision of the Secretary of the Interior to approve the project, and the decision of any other Secretary whose authority may extend to the project, would inevitably be influenced if the County were allowed to construct major segments of the highway before issuance of a final EIS. The completed segments would “stand like gun barrels pointing into the heartland of the park ...” Named Individual Members of the San Antonio Conservation Society v. Texas Highway Department, 400 U.S. 968, 971, 91 S.Ct. 368, 369, 27 L.Ed.2d 338 (1970) (Black, J., dissenting from denial of certiorari). See also Named Individual Members of the San Antonio Conservation Society v. Texas Highway Department, 446 F.2d 1013, 1023 (5 Cir.1971), cert. denied, 406 U.S. 933, 92 S.Ct. 1775, 32 L.Ed.2d 136 (1972). It is precisely this sort of influence on federal decision-making that NEPA is designed to prevent. Non-federal actors may not be permitted to evade NEPA by completing a project without an EIS and then presenting the responsible federal agency with a fait accompli. We are committed to the proposition that when a major federal action is undertaken, no part may be constructed without an EIS. In Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4 Cir.1972), where we concluded that an EIS was required before a road known as Arlington 1-66 could be located and constructed, we considered whether construction which had already begun could continue pending completion of the EIS. We held that it could not, observing that when the Secretary of Transportation acted on the completed EIS and determined the location of the road, he could consider previous investment: “[i]f investment in the proposed route were to continue prior to and during the Secretary’s consideration of the environmental report, the options open to the Secretary would diminish, and at some point his consideration would become a meaningless formality.” Id. at 1333. For this reason we held that an injunction against further construction should issue until the Secretary took final action on the EIS. Id. at 1334. The district court was in error when it failed to consider whether the authority of the Secretary of the Interior over the project made it “federal.” The district court focused on a related definition of “federal action”: whether the project is suffused with enough federal involvement to qualify as a “partnership” between federal and non-federal entities. See Biderman, 497 F.2d at 1147; Ely v. Velde, 451 F.2d 1130 (4 Cir.1971). Because we conclude that the inevitable exercise of federal approval power makes the Great Seneca Highway a federal action, we need not decide whether the highway is also the product of a state-federal partnership. We therefore hold that the complaint states a cause of action under NEPA, and we remand the case to the district court for further proceedings, including consideration of plaintiff’s motion for a preliminary injunction. Plaintiffs ask us to grant injunctive relief in this appeal. Such extraordinary action, we think, would be highly improper, because there are unresolved disputes in essential facts. For example, the district court must determine whether any part of the County’s construction program is essential for access to the land, as the County claims, and whether the program in fact violates NEPA and its regulations by limiting “the choice of reasonable alternatives” available to federal decision-makers. 40 C.F.R. § 1506.1(a)(2) (1985). III. Although we conclude that the complaint alleges a meritorious cause of action for violation of NEPA, we agree with the district court that it does not allege a cause of action for a present violation of the Conservation Act or the Transportation Act. Aside from possible questions of parties, ripeness and exhaustion of administrative remedies, the fact is that defendants are not alleged yet to have made any application to convert park lands to highway use or to have undertaken any such conversion. The complaint therefore fails to state a claim under the Conservation Act. Nor are defendants alleged yet to have made any application for federal funds to finance the cost of construction of this multi-million dollar highway. It is true that plaintiffs allege that defendants received a grant of $245,000 in federal funds for what is obviously preliminary planning for the road, but this sum is so small compared to the actual cost of construction of eight miles of a multi-lane highway that we think it insufficient to render the highway a federally-funded transportation project. The complaint therefore fails to state a claim under the Transportation Act. In considering both the Conservation Act and the Transportation Act, we are mindful that, unlike NEPA, neither statute requires preliminary studies of “proposed” action. See 42 U.S.C. § 4332(C). IV. Accordingly, the district court’s judgment dismissing the claim under the Transportation Act and the Conservation Act is affirmed. Its dismissal of the claim under NEPA is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

Friends of Shawangunks, Inc. v. Clark

OAKES, Circuit Judge. This case presents the novel question whether amendment of a conservation easement acquired in part with federal funds under the Land and Water Conservation Fund Act of 1965 as amended, 16 U.S.C. §§ 460/-4 to 460/-11 (1982), so as to permit expansion ' of a golf course with limited access constitutes a conversion “to other than public outdoor recreation uses” under section 6(f)(3) of the Act, 16 U.S.C. § 460/ -8(f)(3). The Secretary of the Interior, acting through the National Park Service’s Acting Regional Director, determined that a section 6(f)(3) conversion would not occur. Because the public does not have any access to the easement area, the United States District Court for the Northern District of New York, Roger J. Miner, Judge, held that limited access to the proposed golf course actually increased public outdoor recreation opportunities; consequently the Secretary’s determination was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” under 5 U.S.C. § 706(2)(A). 585 F.Supp. 195 We reverse and remand. The Shawangunk Range, located in Ulster County, New York, is noted for spectacular rock formations, sheer cliffs, windswept ledges with pine barrens, fast-flowing mountain streams and scenic waterfalls, as well as a series of five mountain lakes, the “Sky Lakes.” Of these, Lake Minnewaska is one, with extremely steep banks and many magnificent cliffs rising as high as 150 feet along its northern and eastern shores. Lake Minnewaska is situated approximately in the center on a general north-south line of 22,000 acres of permanent open space extending for some sixteen miles along the crest of the Shawangunks. Large tracts of land within the overall area are owned, maintained, and made available to the public for hiking and other limited recreational activities by, among others, the Village of Ellenville, the Palisades Interstate Park Commission (PIPC), the Mohonk Preserve, Inc., Mohonk Mountain Houses, Inc., and the Nature Conservancy. In 1971, the State of New York purchased about 7,000 acres of land bordering Lake Minnewaska to the south and west for the formation of Minnewaska State Park. The park is under the jurisdiction and management of the PIPC, an interstate park commission formed by compact between the State of New York and the State of New Jersey. In 1977, the PIPC added 1,609 acres of land to the park and purchased an approximately 239-acre conservation easement over Lake Minnewaska itself and certain land adjacent to it, all with the help of 50% federal matching funds from the Land and Water Conservation Fund. See 16 U.S.C. § 460Í-8. The lands encumbered by the easement contain inter alia the lake itself, a nonoperating nine-hole golf course, a golf course pro shop, the water supply system for an adjacent resort building, and wooded land. According to its terms, the easement is “for the purpose of, but not solely limited to, the conservation and preservation of unique and scenic areas; for the environmental and ecological protection of Lake Minnewaska and its watershed; and to prevent development and use in a manner inconsistent with the present use and operation of lands now owned and to be conveyed [to the PIPC] and to be part of Minnewaska State Park.” It provides that the fee owner “shall not develop or erect new facilities within the described area; alter the landscape or terrain; or cut trees” but may operate, maintain and reconstruct existing facilities within the easement area, including, but not limited to buildings, roads, utilities and golf courses; provided that (a) Any reconstruction shall be in the same location and utilized for the same purpose as that which existed on the date hereof and that such reconstructed facilities shall be no larger in area than the facility being replaced. In a limited exception to the prohibition against expanded or new construction, the PIPC agreed to the construction or reconstruction of several specific facilities, including “[t]he existing golf course pro shop and a golf course maintenance building” as well as “[a]n access road and parking lot for golf course patrons.” The Marriott Corporation, a national hotel and resort developer, acquired an option in 1980 to purchase approximately 590 acres, including the water and lands encumbered by the 239-acre easement. Marriott proposes to develop a resort facility, complete with a 400-room resort hotel and conference center, 300 condominium units, restaurants, ski facilities, and an expanded, professional grade 18-hole golf course. Eight golf course holes and related facilities, apparently with golf-cart roadways, would be constructed on property subject to the easement. Beginning in early 1981, the PIPC and the Mid-Atlantic Region of the National Park Service debated accommodating Marriott by amending the conservation easement. Friends of the Shawangunks, Inc., a New York not-for-profit corporation with approximately 600 members devoted to insuring the “preservation and prudent development of the Shawangunk Mountains in Ulster County, New York, as a natural resource for all to enjoy,” and certain individual members or “Friends” of the Shawangunks opposed the contemplated amendment. Attorneys for the Friends met with official representatives of the Mid-Atlantic Region on June 16, 1981, arguing both that the amendment would constitute a conversion under section 6(f)(3) requiring the approval of the Secretary of the Interior and that the conversion did not meet that section’s criteria for approval. Despite the Friends’ arguments, the PIPC resolved on July 20, 1981, to amend the conservation easement to allow the Marriott Corporation to expand the golf course as proposed, drill wells within the easement area, increase the use of water from Lake Minnewaska, and utilize acreage encumbered by the easement for purposes of computing total average density of residential development. In consideration, Marriott agreed to extend the area covered by the easement, permit public access to footpaths through the easement area and adjacent lands owned by Marriott, maintain the lake level above an elevation of 1,643 feet, limit development on its other adjoining property, and open the golf course to the public twenty-five percent of the time. On October 20, 1981, defendant Don H. Castleberry, as Acting Regional Director of the Mid-Atlantic Region of the National Park Service, issued a letter to the Deputy Commissioner and Counsel of the New York State Office of Parks and Recreation officially notifying the PIPC that the contemplated amendment of the conservation easement did not constitute a section 6(f)(3) conversion and therefore did not require any federal authorization. This lawsuit followed. The Friends commenced suit against the federal defendants on February 19, 1982. Marriott was granted leave to intervene and answer. After preliminary proceedings in which the plaintiffs were denied certain discovery, cross-motions were argued, and on April 2, 1984, the district court denied the Friends’ motion for summary judgment and granted the federal defendants’ and Marriott’s motion for summary judgment, holding that the amendment did not constitute a conversion. The court reasoned that because the public had no access to the lands encumbered by the easement these lands “presently are not intended for outdoor, public, recreational use” within the meaning of the Land and Water Conservation Fund Act of 1965. Hence, [wjhatever limited public access is contemplated by the terms of the proposed amendment to that easement, therefore, must be viewed as nothing less than a bonus to the public, and not as a diminution in, or conversion of, the availability of public, outdoor, recreation facilities. (Footnote omitted). The Friends moved for reconsideration and for amendment of the judgment, but by order dated May 10, 1984, granting the motion for reconsideration, the court adhered to its original determination and denied the motion to amend the judgment. Discussion We agree with the Friends that the district court wrongly decided that the easement lands presently are “not intended for outdoor, public, or recreational use.” Rather, in light of the policies of the Department of the Interior and the purposes of the statute, we interpret section 6(f)(3) “public outdoor recreation uses” broadly, to encompass uses not involving the public’s actual physical presence on the property. After all, Webster’s Third New International Dictionary (1971) defines “recreation” as “refreshment of the strength and spirits after toil,” id. at 1899; surely by exposing scenic vistas and serving as a buffer zone between Minnewaska State Park and developed areas, the easement area provides such refreshment. When faced with a problem of statutory construction, a court should show considerable deference to any reasonable interpretation given the statute by the officers or agency charged with its administration, especially where specialized agency understanding is involved. See Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565, 100 S.Ct. 790, 796, 63 L.Ed.2d 22 (1980); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); accord Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., — U.S. —, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984); Capitano v. Secretary, 732 F.2d 1066, 1075 (2d Cir., 1984) (on petition for rehearing). Here the Department of the Interior apparently agrees with the Friends that the term “public outdoor recreation uses” should be construed to include conservation easements such as the one at issue. Thus, the Department's Bureau of Outdoor Recreation Manual (Dec. 14, 1973) (hereinafter cited as Manual) indicates the Department’s own broad construction of the Act, pointing out that acquisitions eligible for federal assistance as “lands and waters for public outdoor recreation,” id. § 640.2.1., include “[n]atural areas and preserves and outstanding scenic areas where the objective is to preserve the scenic or natural values, including areas of physical or biological importance and wildlife areas,” id. Outdoor recreation activities are defined to include “sightseeing” and “nature study.” Id. § 640.2.2. The Department thus recognizes as present recreation uses the very uses that the original conservation easement protects and we are unable to find that such an interpretation is either unreasonable or contrary to Congress’s intent. True, a mere surface view of the Act itself seems to show that Congress intended primarily to increase opportunities for active physical recreation. The statement of purposes, for example, envisions “individual active participation in [outdoor] recreation.” 16 U.S.C. § 460¿ -4. Concededly, much of the Act deals with admission and special recreation use fees, see id. §§ 460Z-5a, -6a, -6b, again contemplating actual physical entry. However, both the legislative history and the Act itself reveal Congress’s broader concerns. The Senate Report prominently mentions the need to improve “the physical and spiritual health and vitality of the American people.” S.Rep. No. 1364, 88th Cong., 2d Sess. 4 (1964), reprinted in 1964 U.S.Code Cong. & Ad.News 3633, 3636 (emphasis added). Similarly, when President Kennedy first transmitted to Congress the draft legislation on which the Act is based, his accompanying letter referred specifically to the preservation of “irreplaceable lands of natural beauty and unique recreation value” and to “the enhancement of spiritual, cultural, and physical values resulting from the preservation of these resources.” Letter from President John F. Kennedy to Lyndon B. Johnson, President of the Senate, and John W. McCormack, Speaker of the House of Representatives (Feb. 14, 1963), reprinted in 1964 U.S.Code Cong. & Ad.News 3651, 3651. It is after all a “conservation” fund act. Conservation may include, though it is by no means necessarily limited to, the protection of a present resource in its natural state. Indeed, the Act’s stated purposes include “preserving” the “quality” of outdoor recreation resources. 16 U.S.C. § 460 l-4. The focus on preservation reappears in section 460¿ -9(a)(1), which authorizes allocation of funds for federal acquisitions both to protect endangered and threatened species and also, by reference to section 460k-l, to protect “natural resources.” Thus, contrary to the district court’s holding, the easement area presently is used for “public outdoor recreation uses,” as that term of art was conceived by Congress and has been interpreted by the Interior Department. Having made this determination, we are next faced with the question whether the amendment at issue here constitutes a “conversion” of that easement to other than outdoor, public, recreation uses within the meaning of section 6(f)(3). Though the nature of a conservation easement makes thé application of the concept of conversion somewhat elusive, we conclude that the proposed amendment does constitute such a conversion. The property acquired by PIPC through its purchase of the easement was the right to prevent further development of the land underlying the easement. By the proposed amendment, Marriott, the holder of the fee, would be permitted to engage in precisely such development, changing both the character of the land and the population having access to it. By the amendment, in effect, PIPC would convey away its right to prevent any change in the character of the land subject to the easement. The view that such a change constitutes a “conversion” is supported by the Department of the Interior’s own practice. In a May 15, 1978, Memorandum from the Director of the Department’s Heritage Conservation and Recreation Service to all Regional Directors, delegating to them the conversion-approving function, the Director defined “conversion” to include instances in which “[property interests are conveyed for nonpublic outdoor recreation uses.” (Emphasis added.) It is plain that there is a conversion from public enjoyment of an unspoiled area to private golfing. What is the consequence of this determination? The Secretary, in the words of section 6(f)(3), must determine that the conversion is “in accord with the then existing comprehensive statewide outdoor recreation plan” and grant his approval “only upon such conditions as he deems necessary to assure the substitution of other recreation properties of at least equal fair market value and of reasonably equivalent usefulness and location.” These findings may seem simple, but they nevertheless must be made. Acting Regional Director Castleberry’s letter stating that there was no conversion may not be treated as making them; though his letter did look to these very criteria, we cannot assume that he gave them the attention outlined in the above-mentioned Memorandum of May 15, 1978, which instructs regional directors to. determine, for example, that “[a]ll practical alternatives to the conversion have been evaluated and rejected on sound bases,” and that the fair market values of the property to be converted and of the property to be substituted have been established and compared. Thus, though Acting Regional Director Castleberry reviewed the New York State Department of Environmental Conservation's Draft Environmental Impact Statement on Marriott’s project, which presumably considered the project’s impact on the state’s outdoor recreation plan, and though he implicitly found that the amended easement was “reasonably equivalent” to the original easement when he concluded “that none of the stated purposes for which the easement was acquired are defeated and that public recreation opportunities have been increased,” Letter from Don H. Castleberry, Acting Director, National Park Service, Mid-Atlantic Region, to Albert E. Caccese, Deputy Commissioner and Counsel, New York State Office of Parks and Recreation (Oct. 20, 1981), we cannot assume, for example, that he made sure that all practical alternatives were considered and rejected (e.g., whether the new golf holes could be built elsewhere on Marriott land), or that he established and compared the fair market values of the original and amended easements. We assume, rather, that Acting Regional Director Castleberry would engage in more careful scrutiny before approving a conversion than before determining, as he did here, that his approval was unnecessary. Here we hold that the amended easement constitutes a conversion to “other than public outdoor recreation uses,” 16 U.S.C. § 460¿ — 8(f)(3), requiring the Secretary’s approval. However, we would require approval by the Secretary in this case even if the Marriott Corporation planned to build a completely public outdoor recreation facility, because such a plan would be inconsistent with the original easement’s prohibition of new facilities. Our reasoning runs as follows. The Act requires the Secretary to approve all “planning, acquisition, or development projects” before allocating federal funds. Id. § 460/ -8(f)(1). It envisions that these “projects” will affect the future of the area acquired, preserving outdoor recreation opportunities for “present and future generations.” Id. § 460/-4. Consistent with Congress’s concern for lasting recreation opportunities, the Secretary approved federal funding for the Minnewaska easement in part because of the plans for the easement area’s future — specific constraints on development and guarantees of environmental protection. Consequently, any future change that contravenes these plans retroactively calls into question the basis for the original federal funding. Such a change necessarily requires the Secretary’s approval, whether or not the change falls within the Act’s definition of a “conversion.” Otherwise, the Secretary’s initial approval of a “project” extending into the future would be meaningless. Once again, it would not be enough for the Secretary to find that federal approval is unnecessary; while the statutory criteria for approval would not apply to a change from one public use to another, positive approval is still required. We recognize with Marriott the rather cumbersome process involving a considerable amount of time and effort that undertaking this development has entailed. Marriott tells us that the project has been reviewed not just by the PIPC and the Department of the Interior, but also by the New York State Department of Environmental Conservation, the County of Ulster, the Town of Rochester, and the New Paltz Central School District, and several law suits have been filed. Unfortunately, or fortunately perhaps, the courts do not control the process, let alone establish it. When one undertakes to develop for private purposes a project involving the use of lands encumbered by a government interest, one’s expectations are, or should be, that a certain amount of process and expense will be involved; presumably the anticipated rewards offset the cost and hassle, though surely the ultimate consumer will pay the cost of the benefit the process achieves, or there will be a hole in the developer’s pocket. A court is left with the thought that one challenge of the years ahead is to cut down the process, thus lowering the cost, even while preserving the benefit. Meanwhile, the court’s duty remains to follow the law as written and intended. Since the decision moots the discovery issue briefed by the parties, we do not reach it. Judgment reversed; cause remanded. The district court should enter judgment prohibiting amendment of the easement without an appropriate determination by the Secretary as to the effect of conversion. . Section 6(f)(3) provides: No property acquired or developed with assistance under this section shall, without the approval of the Secretary, be converted to other than public outdoor recreation uses. The Secretary shall approve such conversion only if he finds it to be in accord with the then existing comprehensive statewide outdoor recreation plan and only upon such conditions as he deems necessary to assure the substitution of other recreation properties of at least equal fair market value and of reasonably equivalent usefulness and location.

People v. United States Department of Interior

ALFRED T. GOODWIN, Circuit Judge: Plaintiffs, citizens of the Trust Territory of the Pacific Islands (known also as Micronesia), sued in the district court to challenge the execution by the High Commissioner of the Trust Territory of a lease permitting Continental Airlines to construct and operate a hotel on public land adjacent to Micro Beach, Saipan. Plaintiffs appeal a judgment of dismissal. The district court held that the Trust Territory government is not a federal agency subject to judicial review under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, or the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and that the Ti usteeship Agreement does not vest plaintiffs with individual legal rights which they can assert in a federal court. The court’s opinion is published at 356 F.Supp. 645 (D.Haw.1973). We affirm the judgment, but, for the reasons set out below, we do so without prejudice to the right of the plaintiffs to refile in the district court should the High Court of the Trust Territory deny that it has jurisdiction to review the legality of the actions of the High Commissioner. The facts' are set out in detail in the district court opinion. In brief,’ Continental applied in 1970 to the Trust Territory government for permission to build a hotel on public land adjacent to Micro Beach, Saipan, an important historical, cultural, and recreational site for the people of the islands. Pursuant to States District Judge for the District of Ore-the requirements of the Trust Territory-Code, 67 T.T.C. § 53, Continental’s application was submitted to the Mariana Islands District Land Advisory Board for its consideration. In spite of the Board’s unanimous recommendation that the area be reserved for public park purposes, the District Administrator of the Marianas District recommended approval of a lease. The High Commissioner himself executed the lease on behalf of the Trust Territory government. An officer appointed by the President of the United States with the advice and consent of the Senate (48 U.S.C. § 1681a), the High Commissioner is the highest official in the executive branch of the Trust Territory government. Following its execution in 1972, the lease was opposed by virtually every official body elected by the people of Sai-pan. Indeed, the record in this case shows that the High Commissioner’s decision was officially supported only by the United States Department of the Interior, the Trust Territory Attorney General (a United States citizen), and the District Administrator of the Marianas District (appointed by the High Commissioner, serving directly under him, and subject to removal by him). Later in 1972, an action against some of the parties here was commenced before the High Court of the Trust Territory to enjoin construction of the hotel. The High Court, while denying defend, ants’ motions to dismiss on certain non-federal causes of action, held that NEPA did not apply to actions of the Trust Territory government, as plaintiffs had contended. Soon afterward, the plaintiffs filed this action in the United States District Court for the District of Hawaii, and the High Court thereupon stayed proceedings before it pending the outcome of this action. I. JUDICIAL REVIEW UNDER THE APA OR NEPA The district court, relying upon its earlier decision in People of Enewetak v. Laird, 353 F.Supp. 811 (D.Haw.1973), again held that NEPA applies to federal agencies operating in the Trust Territory. It also held that approval of the lease agreement was “major” action, within the meaning of NEPA. However, although the district court rejected the defendants’ contention that the Trust Territory government is a foreign government immune to suits in United States courts, it accepted the defendants’ alternate contention that the local government is a government of a United States territory or possession, within the meaning of the exclusionary clause in the Administrative Procedure Act, 5 U.S.C. § 701(b)(1)(C) Having concluded that the Trust Territory government was exempt from review under the APA, the district court reasoned that the same standards on the scope of review should be applied to NEPA, and concluded that the action of the High Commissioner in approving and executing the lease agreement was not “federal” action covered by the National Environmental Policy Act, 42 U.S.C. § 4332 We affirm these conclusions of the district court. See 356 F.Supp. at 649-661.(i) ** We recognize, as did the district court, that several decisions have held governments of United States territories to be agencies of the federal government. However, these cases all involved a determination of agency for such purposes as income taxation, Bell v. Commissioner, 278 F.2d 100 (4th Cir. 1960), or the applicability of the Portal-to-Portal Act of 1947, Kam Koon Wan v. E. E. Black, Ltd., 188 F.2d 558 (9th Cir.), cert. denied, 342 U.S. 826, 72 S.Ct. 49, 96 L.Ed. 625 (1951). Plaintiffs have not cited and we have not found a case applying APA judicial review provisions to the Trust Territory or applying even similar review standards to the civil government of any territory or possession. We also recognize, again as did the district court, that the APA exclusionary clause excludes only “the governments of the territories or possessions of the United States,” 5 U.S.C. § 701(b)(1)(C), and that the Trust Territory is not a territory or possession, because technically the United States is a trustee rather than a sovereign. We agree with the district court that this distinction is immaterial, however, because the intent of Congress was to exclude from APA review all governments of this general type created pursuant to the authority of Congress. Plaintiffs have cited several judicial decisions, a regulation, and one Tax Court decision stating that the Trust Territory is not a territory or possession of the United States. However, the holding of the judicial decisions is limited to the applicability of the Federal Tort Claims Act (see, e. g., Callas v. United States, 253 F.2d 838 (2d Cir.), cert. denied, 357 U.S. 936, 78 S.Ct. 1384, 2 L.Ed.2d 1550 (1958); Brunell v. United States, 77 F.Supp. 68 (S.D.N.Y. 1948)), and the regulation and the Tax Court decision both involve federal income taxation. See Treas.Reg. § 1.-931-l(a) (1); Richard W. Benfer, 45 T.C. 277 (1965). We do not read these decisions and the regulation to be inconsistent with our conclusion that Congress intended the government of the Trust Territory, like that of territories and possessions, to be immune from judicial review under the APA. Finally, we note that the Trusteeship Agreement, in which the United Nations designated the United States to be the administering authority of the Trust Territory, states that the United States shall “promote the development of the inhabitants of the trust territory toward self-government * * Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, art. 6(1), 61 Stat. 3301, 3302, T.I.A.S. No. 1665. This clear statement of intent on the part of the United Nations to foster self-government in the Trust Territory constrains us not to hold that the actions of the local government are reviewable in the same manner as the actions of domestic federal administrative agencies, in a federal district court several thousand miles from the islands. For these reasons and for those expressed in the opinion of the district court, we affirm the conclusion of that court that neither the Trust Territory government nor the High Commissioner alone is a “federal agency” as that term is used in making actions reviewable under'the APA or NEPA. II. TRUSTEESHIP AGREEMENT Plaintiffs also asserted below and assert here that the action of the governmental defendants in leasing public land to an American corporation against the expressed opposition of the elected representatives of the people of Saipan and without compliance with NEPA is a violation of their duties under the Trusteeship Agreement. The district court rejected this argument, holding that' the Trusteeship Agreement did not vest the citizens of the Trust Territory with rights which they can assert in a district court. We cannot accept the full implications of this holding. We do not dispute the district court’s conclusion that compliance with NEPA was not required by the Trusteeship Agreement. We do, however, disagree with the holding insofar as it .can be read to say that the Trusteeship Agreement does not create for the islanders sübstantive rights that are judicially enforceable. The district court relied for its conclusion on language in Pauling v. McElroy, 164 F.Supp. 390, 393 (D.D.C. 1958), aff’d on other grounds, 107 U.S.App.D.C. 372, 278 F.2d 252, cert denied, 364 U.S. 835, 81 S.Ct. 61, 5 L.Ed.2d 60 (1960). Pauling concerned an attempt to enjoin United States officials from proceeding with nuclear tests in the Marshall Islands, an area within the trusteeship. The controversy there, unlike the one here, involved the Trusteeship Agreement’s grant of broad discretion to use the area for military purposes. See Trusteeship Agreement arts. 1, 5, 13, 61 Stat. 3301, 3302, 3304. We do not find Pauling to support the defendants’ contention here that the plaintiffs cannot invoke the provisions of the Trusteeship Agreement to challenge the High Commissioner’s power to lease local public land for commercial exploitation by private developers. The right of Rhodesian and American citizens to maintain an action in the courts of the United States seeking enforcement of the United Nations embargo against Rhodesia was recently recognized in Diggs v. Shultz, 152 U.S.App.D.C. 313, 470 F.2d 461 (1972), cert denied, 411 U.S. 931, 93 S.Ct. 1897, 36 L.Ed.2d 390 (1973). On the merits, the court, denied specific relief because of Congressional action which was held to have abrogated the United Nations Security Council Resolution, but the right to seek enforcement in federal court was firmly established. That decision, if correct, suggests that the islanders here can enforce their treaty rights, if need be in federal court. Article 73 of the United Nations Charter, 59 Stat. 1031, 1048, T.S. No. 993 (1945), which discusses non-self-governing territories generally, provides : “Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end: “a. To ensure, with due respect for the culture of the peoples concerned, their political, economic, social, - and educational advancement, their just treatment, and their protections against abuses * * * .” See also United Nations Charter art. 76, describing the basic objectives of the trusteeship system. Although the plaintiffs have argued that these articles of the United Nations Charter, standing alone, create affirmative and judicially enforceable obligations, we assume without deciding that they do not. However, pursuant to Article 79 of the Charter, the general principles governing the administration of trust territories were covered in more detail in a specific trusteeship agreement for the Trust Territory of the Pacific Islands. See generally L. Goodrich, E. Hambro & A. Simons, Charter of the United Nations : Commentary & Documents 502 (3rd ed. 1969). Specifically, Article 6 of the Trusteeship Agreement requires the United States to “promote the economic advancement and self-sufficiency of the inhabitants, and to this end * * * regulate the use of natural resources” and to “protect the inhabitants against the loss of their lands and resources * * *.” Defendants contend, though, that provisions of the Trusteeship Agreement, including Article 6, can be enforced only before the Security Council of the United Nations. We disagree, concluding that the Trusteeship Agreement can be a source of rights enforceable by an individual litigant in a domestic court of law. The extent to which an international agreement establishes affirmative and judicially enforceable obligations without implementing legislation must be determined in each case by reference to many contextual factors: the purposes of the treaty and the objectives of its creators, the existence of domestic procedures and institutions appropriate for direct implementation, the availability and feasibility of alternative enforcement methods, and the immediate and long-range social consequences of self- or non-self-execution. See generally M. McDougal, H. Lasswell, & J. Miller, The Interpretation of Agreements and World Public Order; Principles of Content and Procedure passim (1967). The preponderance of features in this Trusteeship Agreement suggests the intention to establish direct, affirmative, and judicially enforceable rights. The issue involves the local economy and environment, not security; the concern with natural resources and the concern with political development are explicit in the agreement and are general international concerns as well; the enforcement of these rights requires little legal or administrative innovation in the domestic fora; and the alternative forum, the Security Council, would present to the plaintiffs obstacles so great as to make their rights virtually unenforceable. Moreover, the Trusteeship Agreement constitutes the plaintiffs’ basic constitutional document (see Parry, The Legal Nature of Trusteeship Agreements, 27 Brit. Year Book Int’l L. 164, 182-84 (1950), excerpted in 1 M. White-man, Digest of International Law 893 (1963), and is codified into the law of the Trust Territory, 1 T.T.C. § 101(1). For all these reasons, we believe that the rights asserted by the plaintiffs are judicially enforceable. However, we see no reason why they could not and should not have been enforced in the High Court of the Trust Territory. The district court found that: “ * * * The lease approval was a ‘local’ decision of the High Commissioner acting within the scope of his duties as chief executive of the Trust Territory Government. The officials of the Interior Department did not negotiate, counsel, advise or participate in the decision. Nor was the lease ever sent to the Department for approval or concurrence in any form * *» 356 F.Supp. at 657 n.28. Surely, the judicial branch of the Trust Territory government has the authority to determine whether or not the action of its chief executive complies with a provision in its own constitutional document. We recognize that the Trusteeship Agreement purports to obligate the United States, not the individual who happens to be High Commissioner. Nonetheless, because of the process of his appointment, the High Commissioner has the responsibility to act in a manner consistent with the duties assumed by the United States itself in the Trusteeship Agreement. Thus, although we hold that the Trusteeship Agreement is a source of individual legal rights, we also hold that, in a case involving actions by the High Commissioner within the scope of his duties as chief executive, these rights are not initially enforceable in United States courts. Rather, upon principles of comity, they should be asserted before the High Court of the Trust Territory. Admittedly, the substantive rights guaranteed through the Trusteeship Agreement are not precisely defined. However, we do not believe that the agreement is too vague for judicial enforcement. Its language is no more general than such terms as “due process of law,” “seaworthiness,” “equal protection of the law,” “good faith,” or “restraint of trade,” which courts interpret every day. Moreover, the High Court can look for guidance to its own recently enacted environmental quality and protection act, T.T.Pub.L. No. 4C-78 of Apr. 14, 1972, codified at 68 T.T.C. §§ 501-509, to the relevant principles of international law and resource use which have achieved a substantial degree of codification and consensus (see Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964)), and to the general direction, although not necessarily the specific provisions, of NEPA. Cf. Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F.Supp. 252 (D.D.C.1972). These sources should provide a sufficiently definite standard against which to test the High Commissioner’s approval of a 50-year lease of unique public lands to an American corporation, allegedly in disregard of the protests of the islands’ elected officials and without a showing of consideration of cultural and environmental factors. Since the High Commissioner claims to have been acting pursuant to local statutes when he approved the lease to Continental, if the High Court finds that his action violated provisions of the Trusteeship Agreement, that court may have to declare these statutes void either on their face or void as applied by the High Commissioner. The order of the United States Department of the Interi- or which established the structure of the Trust Territory government forbids the legislative branch of the Trust Territory government from enacting any legislation inconsistent with “treaties or international agreements of the United States * * Dept. of Interior Order No. 2918, pt. III, § 2(a) (1968). Because the Trusteeship Agreement is an international agreement of the United States, local legislation inconsistent with it must fall. • Although the High Court has held that it lacks jurisdiction over an agency of the United States or its officers in the Trust Territory (see Schulz v. Peace Corps, 4 T.T.R. 428 (1969)), the Secretary of the Interior assures us that his department did not participate in any way in the decision to grant a lease to Continental, and, hence, that Schulz will not bar the High Court from hearing and deciding this case. If, in the proceedings before the High Court, it should appear that the actions of the High Commissioner cannot be effectively reviewed and tested against the duties assumed by the United States in the Trusteeship Agreement, either because his actions were controlled by a directive or regulation of the Secretary of the Interior which the High Court considers nonreviewable or because the High Court does not agree that it has the power to review the High Commissioner’s actions against the standards established in the Trusteeship Agreement, then the plaintiffs may refile this action in the United States District Court for the District of Hawaii. We recognize that the High Court has said earlier that the Trusteeship Agreement does not create a trust capable of enforcement through the courts. See Alig v. Trust Territory of the Pacific Islands, 3 T.T.R. 603, 615-16 (1967). We also recognize that, unless the High Commissioner acted unconstitutionally or in violation of the law, the suit against him might not be cognizable in the Trial Division of the High Court because of the doctrine of soverign immunity. See also 6 T.T.C. § 252(2). Nonetheless, the High Court is free to re-evaluate its position with regard to the enforceability of the provisions of the Trusteeship Agreement under Diggs v. Shultz, supra. It may conclude, as we did, that as the judicial branch of a political entity possessing many of the attributes of an independent nation, that court has the power to hear a claim that the islands’ chief executive officer has violated terms of the Trusteeship Agreement. If the High Court reaches this conclusion, the doctrine of sovereign immunity would provide no basis for refusing to hear the action. See Malone v. Bowdoin, 369 U.S. 643, 647, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-690, 701-702, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). We hold, then, that the plaintiffs must initially pursue their remedies in the local court. If our assumption that the High Court has the power to review the decision of the High Commissioner proves to be invalid, then the federal district court must assume jurisdiction of this case. We refuse to leave the plaintiffs without a forum which can hear their claim that the High Commissioner has violated the duties assumed by the United States in the Trusteeship Agreement. Because it is possible that we may see this case again, we comment briefly on one issue raised by the defendants. Continental contends that it has acquired some equities by proceeding with the construction of its hotel while its right to do so is being litigated. Unless we misread the argument, Continental seems to be asserting that the damage has been done, and that it is too late for courts to remedy it. We note that Continental initiated bulldozing activities at the Micro Beach without notice and while the High Commissioner supposedly was giving further consideration to the project. The plaintiffs’ action was commenced in the High Court almost immediately afterward, and in federal court within one and one-half months. We caution Continental that: “ * * * [A] fter a defendant has been notified of the pendency of a suit seeking an injunction against him, even though a temporary injunction be not granted, he acts at his peril and subject to the power of the court to restore the status, wholly irrespective of the merits as they may be ultimately decided * * Jones v. S. E. C., 298 U.S. 1, 17, 56 S.Ct. 654, 658, 80 L.Ed. 1015 (1936), quoted in Nat’l Forest Preservation Group v. Butz, 485 F.2d 408, 411 (9th Cir. 1973). The judgment of dismissal is affirmed as modified. . The High Court concluded that the Trust Territory government was not a “federal agency” and that the nigh Commissioner, acting as its chief executive officer, was not subject to NEPA. The court relied primarily upon the prior determination of the Secretary of the Interior that “territorial governments, under the jurisdiction of the Secretary _ of the Interior, are not agencies or instrumentalities of the executive branch of the Federal Government * * * [and] that the territorial governments are not organized entities of the Department of the Interior.” Dept. Manual of Dept, of Interi- or 150.1.4. . “For the purpose of this chapter— “(1) ‘agency’ means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include— “ s}: * * “(C) the governments of the territories or possessions of the United States * * *.” 5 U.S.C. § 701(b). . “The Congress authorizes and directs that, to the fullest extent possible: * * * all agencies of the Federal Government shall !}S V “(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented * * 42 U.S.C. § 4332. . See also Vermilya-Brown Co. v. Connell, 335 U.S. 377, 69 S.Ct. 140, 93 L.Ed. 76 (1948), in support of the conclusion that NEPA applies to federal agencies operating in the Trust Territory. . But see Porter v. United States, 496 F.2d 583 (Ct.Cl.1974), holding that the Trust Territory government was not an agency of the United States for the purpose of asserting jurisdiction against the United States for an alleged breach of a contract negotiated by ' officials of the Trust Territory government. . Article 12 of the Trusteeship Agreement empowers the United States to '“enact such legislation as may be necessary to place the provisions of this agreement in effect in the trust' territory.” Our conclusion that the actions of the Trust Territory government are not subject to NEPA is an equivalent way of saying that Congress has not, pursuant to Article 12, legislated to make NEPA applicable to the Trust Territory government. Hence, in approving the lease agreement, the High Commissioner was under no obligation to comply with NEPA. This is the same conclusion as that readied by the High Court. See note 1, supra. . See Note, 14 Va.J.Int’l L. 185 (1973), which comments upon Diggs v. Shultz. . “The terms of trusteeship for each territory to be placed under the trusteeship system, including any alteration or amendment, shall be agreed upon by the states directly concerned, including the mandatory power in the case of territories held under mandate by a Member of the United Nations, and shall be approved as provided for in Articles 83 and 85.” United Nations Charter art. 79, 59 Stat. 1031, 1049. . Unlike the other ten trusteeships set up after World War II, pursuant to agreements between the United Nations and various nations, the Trust Territory was designated as a “strategic” trust. Trusteeship Agreement art. 1, 61 Stat. 3301. See 1 M. Whiteman, Digest of International Law 766. This designation results in the United States being responsible to the Security Council for the administration of the Trust Territory— where the United States possesses veto power (United Nations Charter art. 27, 59 Stat. 1041) — rather than to the General Assembly. United Nations Charter art. 83(1), 59 Stat. 1050. . Article 12 of the Trusteeship Agreement of 1947 authorized the United States to enact such legislation as may be necessary to implement the agreement. 61 Stat. 3304. At first, President Truman gave the Navy administrative responsibility for the islands. Exec. Order No. 9875, 12 Fed.Reg. 4837 (1947), 3 C.F.R. 658 (1943-48 Comp.). In 1951 administration of the islands was transferred to the Department of the Interior. Exec. Order No. 10265, 16 Fed.Reg. 6419 (1951), 3 C.F.R. 766 (1949-53 Comp.). During the next two years, responsibility for administration of parts of the Trust Territory was redelegated back to the Secretary of the Navy. Exec. Order No. 10408, 17 Fed. Reg. 10277 (1952), 3 C.F.R. 906 (1949-53 Comp.); Exec. Order No. 10470, 18 Fed. Reg. 4231 (1953), 3 C.F.R. 951 (1949-53 Comp.). Not until 1954 did Congress begin to legislate to implement the Trusteeship Agreement, and then it merely stated that, until it. provided further for its government, all governmental authority in the Trust Territory rested with the President. Act of June 30, 1954, ch. 423, § 1, 68 Stat. 330, as amended, 48 U.S.C. § 1681(a). Finally, in 1962 President Kennedy redelegated his authority for civil administration of the entire Trust Territory to the Secretary of the Interior. Exec. Order No. 11021, 27 Fed.Reg. 4409 (1962), 3 C.F.R. 600 (1959-63 Comp.). The Secretary of the Interior, in turn, delegated executive authority for the Trust Territory to the High Commissioner: “The executive authority of the Government of the Trust Territory, and the responsibility for carrying out the international obligations undertaken by the United Nations with respect to the Trust Territory, shall be vested in a High Commissioner of the Trust Territory and shall be exercised and discharged under the supervision and direction of the Secretary.” Dept, of Interior Order No. 2918, pt. II, § 1, 34 Fed.Reg. 157 (1969). Meanwhile, in 1967 Congress provided that this High Commissioner shall be appointed by the President and confirmed by the Senate. Act of May 10, 1967, Pub.L.No.90-16 § 2, 81 Stat. 15, codified, 48 U.S.C. § 1681a. See generally Note, A Macrostudy of Micronesia : The Ending of a Trusteeship, 18 N. Y.L.F. 139 (1972). Thus, as the district court here observed, the High Commissioner’s authority “does not come from the people of the Trust Territory, nor do they have any method of removing him when dissatisfied with his actions or policies.” 356 F.Supp. at 655. See also So-cieta A.B.C. v. Fontana & Della Rocca, [1955] I.L.R. 76 (Court of Cassation, United Chambers, Italy 1954), quoted at 1 M. Whiteman, Digest of International Law 870-71, which held that the Italian Trusteeship Administrator for Somaliland derived his authority from the Italian state and, hence, was an organ of that state. . “Appellees suggest that the prospects of significant relief by means of the embargo are so slight that this relationship of intended benefit is too tenuous to support standing. But this strikes us as tantamount to saying that because the performance of the United Nations is not always equal to its promise, the commitments of a member may be disregarded without having to respond in court to a charge of treaty violation. It may be that the particular economic sanctions invoked against Southern Rhodesia in this instance will fall short of their goal, and that appellants will ultimately reap no benefit from them. But, to persons situated as are api>ellants, the United Nations action constitutes the only hope; and they are personally aggrieved and injured by the dereliction of any member state which weakens the capacity of the world organization to make its policies meaningful.” Diggs v. Shultz, 470 F.2d at 465.

People v. United States Department of Interior

TRASK, Circuit Judge (concurring): I join in the decision of the majority but follow a different course to the common conclusion. First of all, it appears clear to me that the Charter of the United Nations is not self-executing and does not in and of itself create rights which are justicia-ble between individual litigants. Although under Article VI of the Constitution treaties are part of the supreme law of the land, it was early held that to be immediately binding upon our courts a treaty must be self-executing. Chief Justice Marshall enunciated this principle in Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314, 7 L.Ed. 415 (1829): “Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract — when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the court.” Unless a treaty is self-executing, in order to be cognizable before the courts it must be implemented by legislation. Otherwise it constitutes a compact between sovereign and independent nations dependent for its recognition and enforcement upon the honor and the continuing self-interest of the parties to it. If, however, the treaty contains language which confers rights or obligations on the citizenry of the compacting nations then, upon ratification, it becomes a part of the law of the land under Article VI. In Head Money Cases, 112 U.S. 580, 5 S.Ct. 247, 28 L.Ed. 798 (1884), the Court said: “A treaty, then, is the law of the land as an act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute.” 112 U.S. at 598-599, 5 S.Ct. at 254. I find nothing in a reading of the Charter and nothing has been called to my attention which would persuade me to believe that the Charter itself creates individual rights which may be enforced in the courts. There is little definitive case law elucidating the issue of self-implementation vel non. The appellants have referred to some of the cases in which reference to the Charter has been made. Those cases are of questionable precedential value. Looking in the opposite direction we find cases that are subject to much the same criticism. The only-case which straightforwardly holds in broad terms that the Charter is not self-executing is Pauling v. McElroy, 164 F.Supp. 390 (D.D.C.1958), aff’d per curiam on other grounds, 101 U.S.App. D.C. 372, 278 F.2d 252, cert. denied, 364 U.S. 835, 81 S.Ct. 61, 5 L.Ed.2d 60 (1960). The District Court in Pauling stated: “The provisions of the Charter of the United Nations, the Trusteeship Agreement for the Trust Territory of the Pacific Islands, and the international law principle of freedom of the seas relied on by plaintiffs are not self-executing and do not vest any of the plaintiffs with individual legal rights which they may assert in this Court. The claimed violations of such international obligations and principles may be asserted only by diplomatic negotiations between the sov-ereignties concerned.” 164 F.Supp. 393. In Hitai v. Immigration & Naturalization Service, 343 F.2d 466, 468 (2d Cir. 1965), the court held that Article 55 of the Charter was not self-executing. Both from the standpoint of the inherent nature of treaty obligations and what appears to me to be a plain reading of the language of the Charter, I would hold it to be a compact between sovereign nations neither intending to impart justiciable rights to individuals nor implicitly doing so. This position is fortified, it would seem, by the very fact that the Charter provided for a system of trusteeship. Chapter XI, which contains Article 73, is a mutual declaration of the members of their responsibilities for the administration of territories whose peoples have not yet attained a complete competence of self-government. Chapter XII and Chapter XIII then provide for the International Trusteeship System for the administration and supervision of those territories. Under those Articles a Trusteeship Agreement was executed between the Security Council of the United Nations and the United States, as administering authority effective July 18, 1947, for the Territory of the Pacific Islands. It provided the United States with the authority to enact a comprehensive system of government under Article 6. Congress has empowered the President with authority for the civil administration of the Territory until Congress itself should further establish a system of government. 48 U.S.C. § 1681. Under this statutory basis, a series of Executive orders delegated responsibility for government to the Department of the Interior, see Exec. Order No. 11,021, 3 C.F.R. 600 (1959-63 Comp.), 48 U.S.C. § 1681, and that Department eventually promulgated a single document combining previous orders into one basic order for the Government of the Trust Territory of the Pacific Islands. Dept. of Interior Order No. 2918, Dec. 27, 1968, 34 Fed.Reg. 157 (1969). This consolidated order constituted a mini-organic act creating legislative, executive, and judicial branches of the Government with a Congress, a High Commissioner as the Chief executive, and a High Court of the Trust Territory with a Chief Justice and Associate Justices appointed by the Secretary of the Interior. I agree with the federal appellees and with the court in Pauling v. McElroy, supra, that the Trusteeship Agreement is not self-executing. Yet, a series of actions all ultimately founded upon congressional authority have so executed the Agreement that its provisions may now properly be regarded as judicially enforceable. Thus, the Agreement was approved by the President pursuant to a joint resolution of Congress, see note 5 supra, and implemented by Executive orders promulgated pursuant to congressional authority, 48 U.S.C. § 1681. Finally, the Trust Territory Government, created by the Department of the Interior, has declared the Agreement “to be in full force and to have the effect of law in the Trust Territory.” 1 T.T.C. § 101(1). The Trust Territory Code provides: “The Trial Division of the High Court shall have original jurisdiction to try all causes, civil and criminal, including probate, admiralty, and maritime matters and the adjudication of title to land or any interest therein.” 5 T.T. C. § 53. All decisions rendered in such matters are subject to review by the Appellate Division under 55 T.T.C. § 54(1)(a). It thus appears to me as it does to the majority that jurisdiction does lie with the High Court to determine the validity of the lease in accordance with its own law and any other law affecting the lease or the lands to which the lease is applicable. Based upon considerations of comity, I agree that this cause should initially be addressed to the High Court. . “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const, art. VI. . The decision in Foster was overruled by United States v. Percheman, 32 U.S. (7 Pet.) 51, 8 L.Ed. 604 (1883), in an opinion also written by Chief Justice Marshall when new facts were brought to bear upon the controversy, but the legal principle announced in Foster was not undermined. See Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 10, 57 S.Ct. 100, 81 L.Ed. 5 (1936); Head Money Cases, 112 U.S. 580, 598-599, 5 S.Ct. 247, 28 L.Ed. 798 (1884); L. Henkin, Foreign Affairs and the Constitution 156-58 (1972); Comment, Criteria for Self-Executing Treaties, 1968 U.Ill.L.F. 238, 239. . The fact that a treaty was ratified by the President of the United States upon the advice and consent of two-thirds of the Senate, as was the United Nations Charter (Charter of the United Nations, June 26, 1945, 59 Stat. 1031, 1213, T.S.No.993 (effective Oct. 24, 1945)), makes it a commitment of the nation but does not necessarily impart rights and obligations to individual citizens. . In concurring opinions in Oyama v. California, 332 U.S. 633, 649-650, 673, 68 S.Ct. 269, 92 L.Ed. 249 (1948), Justices Black, Douglas, and Murphy intimate that Articles 55 and 56 of the Charter support a position proscribing racial discrimination; a dissenting opinion in Hurd v. Hodge, 82 U.S.App.D.C. 180, 162 F.2d 233, 245 (1947), rev’d, 334 U.S. 24, 68 S.Ct. 847, 92 L.Ed. 1187 (1948), is much the same. In an appeal from a contempt-of-Congress conviction for the refusal of a United Nations’ employee to answer whether anyone had aided lier in obtaining employment, Article 105 was discussed but the actual decision was based upon other grounds. Keeney v. United States, 94 U.S.App.D.C. 366, 218 F.2d 843, 845 (1954). Diggs v. Shultz, 152 U.S.App.D.C. 313, 470 F.2d. 461 (1972), cert. denied, 411 U.S. 931, 93 S.Ct. 1897, 36 L.Ed.2d 390 (1973), was a case in which the plain tiffs sought relief against the Secretary of the Treasury because of an official authorization of importation of metals contrary to the terms of a United Nations’ embargo in which the United States had joined. Relief was denied because of the nonjusticiability of the claim under the separation-of-powers doctrine, although the court did hold that the plaintiffs had standing to litigate the issue of the failure of the defendants to adhere to the Government’s treaty obligations. In Diggs, however, the relevant provision of the Charter, Article 41, had been implemented by Congress through the enactment of 22 U.S.C. § 287c, which authorizes the President to effectuate Article 41 sanctions and prescribes criminal penalties for those individuals disobeying such Presidential orders. Indeed, pursuant to this statutory authority, the President had issued Executive orders banning the importation of the items in question. Exec. Order No. 11,419, 3 C.F.R. 737 (1966-70 Comp.), 22 U.S.C. § 287c; Exec. Order No. 11,322, 3 C.F.R. 606 (1966-70 Comp.), 22 U.S.C. § 287c; see Diggs v. Shultz, 470 F.2d at 463. . Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, 61 Stat. 3301, T.I.A.S. No. 1665. The Agreement was approved by the President on July 18, 1947, pursuant to the authority of a joint resolution of Congress of the same date. 61 Stat. 397 (1947). . Trusteeship Agreement, art. 12. Article 6 provides in pertinent part that the administering authority [the United States] shall: “1. foster the development of such political institutions as are suited to the trust territory and shall promote the development of the inhabitants of the trust territory toward self-government or independence . . . ; “2. promote the economic advancement and self-sufficiency of the inhabitants “3. promote the social advancement of the inhabitants . . . ; and “4. promote the educational advancement of the inhabitants . . . . ” 61 Stat. at 3302-3303. . The language of the Agreement, and in particular that of Article 6, the specific provision at issue in this suit, evinces a series of general commitments undertaken by the United States in furtherance of particular social objectives. See note 6 supra. That these phrases may become workable through judicial construction, as the majority opines, does not detract from the probability that, had the drafters of the instrument intended the document to have the effect of a statute, more precise language delimiting the rights of Micronesians would have been employed. Compare Head Money Cases, 112 U.S. 580, 598-599, 5 S.Ct. 247, 28 U.Ed. 798 (1884); Hauenstein v. Lynham, 100 U.S. 483, 25 L.Ed. 628 (1879). Moreover, the Agreement, in Article 12, states: “The administering authority shall enact such legislation as may be necessary to place the provisions of this agreement in effect in the trust territory.” Since, under the Constitution of the “administering authority” (the United States), self-executing treaties are effective upon ratification, this provision, as drafted, would not have been necessary had the drafter^ intended the Agreement to be self-executing.

Or. Natural Desert Ass'n v. Rose

GRABER, Circuit Judge: This litigation arose from the Bureau of Land Management's decisions about the route network for motorized vehicles in the Steens Mountain Cooperative Management and Protection Area ("Steens Mountain Area"). The Bureau issued two plans: the Steens Mountain Travel Management Plan ("Travel Plan") and the Steens Mountain Comprehensive Recreation Plan ("Recreation Plan"). Plaintiff Oregon Natural Desert Association ("ONDA") challenged the Recreation Plan, and the Interior Board of Land Appeals' ("Board") approval of the Travel Plan, under the National Environmental Policy Act of 1969 ("NEPA"), the Federal Land Policy Management Act of 1976 ("FLPMA"), and the Steens Mountain Cooperative Management and Protection Act of 2000 ("Steens Act"). Harney County intervened to defend the Board's approval of the Travel Plan, but also cross-claimed against the Bureau to challenge the Recreation Plan as arbitrary and capricious. The district court upheld both agency actions. Reviewing de novo, San Luis & Delta-Mendota Water Auth. v. Locke , 776 F.3d 971, 991 (9th Cir. 2014), we affirm in part, vacate in part, and remand. A. Consultation with the Advisory Council The Bureau satisfied its obligation to consult the Steens Mountain Advisory Council before issuing the Recreation Plan, so its action was not arbitrary and capricious in that respect. 5 U.S.C. § 706(2)(A). Although the Bureau must make any decision "to permanently close an existing road" or "restrict the access of motorized or mechanized vehicles on certain roads" in the Steens Mountain Area "in consultation with the advisory council," 16 U.S.C. § 460nnn-22(c), the Steens Act does not specify how the Bureau must consult with the Advisory Council. The Advisory Council has no power to make management decisions for the Steens Mountain Area or to veto the Bureau's management decisions. See id. § 460nnn-51(a) (establishing the Advisory Council solely "to advise" the Secretary of the Interior in managing the Steens Mountain Area). Here, the Bureau opened the public comment period for the revised Recreation Plan Environmental Assessment ("EA") on January 12, 2015. The Bureau formally briefed the Advisory Council on the Recreation Plan about two weeks later, during meetings in which the Bureau gave Advisory Council members copies of each route analysis and discussed the project. At the end of the meetings, the Advisory Council suggested that the Bureau should "use the information" from the meetings and act as it saw fit. In short, the Bureau adequately consulted the Advisory Council. Even if the degree or mode of consultation were insufficient, any error was harmless to the County. The County responded to the revised EA months before the Bureau issued the final Recreation Plan decision and Finding of No Significant Impact ("FONSI") in April 2015. The County cannot explain how the Bureau's purported failure to consult the Advisory Council more extensively "caused the agency not to be fully aware of the environmental consequences of the proposed action, thereby precluding informed decisionmaking and public participation, or otherwise materially affected the substance of the agency's decision." Idaho Wool Growers Ass'n v. Vilsack , 816 F.3d 1095, 1104 (9th Cir. 2016). B. Definition of "Roads and Trails" The Board acted arbitrarily and capriciously by changing its definition of "roads and trails" without providing a reasoned explanation for the change. Encino Motorcars, LLC v. Navarro , --- U.S. ----, 136 S.Ct. 2117, 2125-26, 195 L.Ed.2d 382 (2016). The Steens Act prohibits the use of motorized vehicles "off road," but also authorizes the use of motorized vehicles on "roads and trails," without defining those terms. 16 U.S.C. § 460nnn-22(b)(1). The Board reconciled this seeming contradiction "by concluding that since the statute clearly meant to allow [the Bureau] to designate roads and trails as open to motorized travel, the prohibition against motorized off-road travel logically can only mean that motorized travel that does not occur on either a road or a trail is prohibited." Although the Steens Act does not use the term "route," the Board used that more generic term throughout its decisions to encompass "roads and trails." In its 2009 decision on the Travel Plan, the Board decided that there exists "inherent incongruity in determining that routes are 'obscure,' or difficult or impossible to identify on the ground, and concluding that opening them to motorized use is consistent with the Steens Act." In other words, the Board determined that a route that is "difficult or impossible to identify on the ground" is neither a road nor a trail under the Steens Act. The Board thus reversed the Bureau's decision to allow motorized travel on 36 miles of Obscure Routes. But in its 2014 remand decision on the Travel Plan, the Board reversed course and sua sponte overturned its own decision to close the Obscure Routes. For the first time, the Board defined "route" to mean something that "existed as a matter of record" in October 2000-when Congress enacted the Steens Act -"and that might again be used in the future, despite a present difficulty in physically tracing [it] on the ground." The "record" to which the Board referred included sources such as hand-drawn maps and testimony from local ranchers and grazing permittees, whether those maps or testimony existed in 2000 or only later. Of course, agencies may change their policies over time. But an agency must "at least 'display awareness that it is changing position' and 'show that there are good reasons for the new policy.' " Encino Motorcars , 136 S.Ct. at 2126 (quoting FCC v. Fox Television Stations, Inc. , 556 U.S. 502, 515, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) ). The Board failed to do that. The Board did not explain, for example, what led it to alter its earlier decision or why the new approach was more consistent with the text of the Steens Act. It also did not explain why it could rely on a "record" that was created after the effective dates of both the Steens Act and the FLPMA and that consisted largely of representations made by interested local parties. See id. at 2127 (discussing how the agency might have justified its choice). Because the Board acted arbitrarily and capriciously, we vacate its approval of the Travel Plan and remand. Because the Steens Act leaves room for agency discretion in this area, such that the Board or the Bureau could redefine "road" or "trail" on remand even if we endeavored to define those terms first, Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs. , 545 U.S. 967, 982, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005), we do not define the terms here. We leave it to the agency, in the first instance, to explain its change in position or to craft new definitions and explain them. C. The Travel Plan The Board also acted arbitrarily and capriciously by affirming the Bureau's issuance of the Travel Plan. Even assuming that the Bureau properly inventoried all "roads and trails" in the Steens Mountain Area, the Bureau failed to establish the baseline environmental conditions necessary for a procedurally adequate assessment of the Travel Plan's environmental impacts. "Without establishing the baseline conditions" before a project begins, "there is simply no way to determine what effect the project will have on the environment and, consequently, no way to comply with NEPA." Great Basin Res. Watch v. BLM , 844 F.3d 1095, 1101 (9th Cir. 2016) (brackets omitted) (quoting Half Moon Bay Fishermans' Mktg. Ass'n v. Carlucci , 857 F.2d 505, 510 (9th Cir. 1988) ). Nothing in the Travel Plan EA establishes the physical condition of the routes, such as whether they are overgrown with vegetation or have become impassable in certain spots. Indeed, the Bureau acknowledged that it included some routes in the inventory even though its staff could not find those routes on the ground. Despite that lack of information, the Travel Plan EA authorized most routes for "Level 2" maintenance, which involves mechanically grading a route and "brushing" (removing) roadside vegetation. Such "routine" maintenance can dramatically change a lightly used route and its surroundings. Thus, without understanding the actual condition of the routes on the ground, the Bureau could not properly assess the environmental impact of allowing motorized travel on more than 500 miles of routes, or of carrying out mechanical maintenance on those routes. The Bureau "had a duty to assess, in some reasonable way, the actual baseline conditions" in the Steens Mountain Area, Or. Nat. Desert Ass'n v. Jewell , 840 F.3d 562, 569 (9th Cir. 2016), but it failed to perform that duty. NEPA does not require the Bureau to accept ONDA's assessment of the environmental consequences of the Travel Plan. It does, however, require the Bureau to "articulate[ ] a rational connection between the facts found and the choice made," instead of relying on an ipse dixit assessment of environmental impacts over a contrary expert opinion and data. Pac. Coast Fed'n of Fishermen's Ass'ns v. Blank , 693 F.3d 1084, 1091 (9th Cir. 2012) (internal quotation marks omitted). Ordinarily, we must defer to an agency's technical expertise and reasonable choice of methodology, because NEPA "does not require adherence to a particular analytic protocol." Or. Nat. Desert Ass'n v. BLM ("ONDA v. BLM "), 625 F.3d 1092, 1121 (9th Cir. 2010) (quoting Ass'n of Pub. Agency Customers, Inc. v. Bonneville Power Admin. , 126 F.3d 1158, 1188 (9th Cir. 1997) ). And an agency need not measure "actual baseline conditions in every situation-it may estimate baseline conditions using data from a similar area, computer modeling, or some other reasonable method." Great Basin , 844 F.3d at 1101. But here, the Bureau did not use any method or estimate-aside from making generic statements about roads in the Steens Mountain Area-to establish baseline conditions. We "cannot defer to a void." ONDA v. BLM , 625 F.3d at 1121. The EA itself "contains virtually no references to any material in support of or in opposition to its conclusions," even though the EA "is where the [Bureau's] defense of its position must be found." Blue Mountains Biodiversity Project v. Blackwood , 161 F.3d 1208, 1214 (9th Cir. 1998) (citing 40 C.F.R. § 1508.9(a) ). The EA and the previous Environmental Impact Statement ("EIS") to which it is tiered contain only a cursory analysis of the project's impact on noteworthy aspects of the Steens Mountain Area, such as the sage grouse population and the spread of noxious weed infestations. We have warned that "general statements about 'possible' effects and 'some risk' do not constitute a 'hard look' absent a justification" for why an agency could not supply more "definitive information." Id. at 1213 (internal quotation marks omitted). The EA and the EIS lack any such justification. Accordingly, we vacate the Board's approval of the Travel Plan, and remand with instructions for the Board to remand the Travel Plan to the Bureau for reconsideration. Because we conclude that the Travel Plan is procedurally deficient under NEPA, we do not reach ONDA's substantive challenges to the Travel Plan under the Steens Act and the FLPMA. Likewise, we do not decide whether the Bureau must prepare an EIS for the Travel Plan. Having addressed the problems we have identified, the [Bureau] may decide to make different choices. NEPA is not a paper exercise, and new analyses may point in new directions. As a result, although ONDA also raises concerns regarding alleged substantive and procedural flaws within the Plan, we do not reach those issues today. The problems it identifies may never arise once the [Bureau] has had a chance to see the choices before it with fresh eyes. ONDA v. BLM , 625 F.3d at 1124. D. Recreation Plan The Bureau acted arbitrarily and capriciously in issuing the Recreation Plan. Here, too, the Bureau failed to establish the baseline conditions necessary for it to "carefully consider information about significant environmental impacts" to the Steens Mountain Area. N. Plains Res. Council, Inc. v. Surface Transp. Bd. , 668 F.3d 1067, 1085 (9th Cir. 2011). This time around, the Bureau made Route Analysis Forms and aerial photographs available during the comment period. But neither the photographs nor the forms themselves reveal any details about the condition of the Obscure Routes. Each form starts with the following prompt: "Please describe the general setting of the area including precipitation and vegetation and compare this data to an average precipitation year. Provide any other pertinent information." Yet, even though the Bureau seemingly recognized the importance of establishing baseline conditions (such as the vegetation on each route), the completed forms fail to provide any details responsive to the prompt. Without establishing baseline conditions for the Obscure Routes, the Bureau could not have analyzed the environmental impacts of the Recreation Plan properly. Great Basin , 844 F.3d at 1101. At some point after the public comment period closed, the Bureau attached ground photographs for a few Obscure Routes to the forms; the photographs show details about vegetation and the condition of the routes themselves. Such late analysis, "conducted without any input from the public," impedes NEPA's goal of giving the public a role to play in the decisionmaking process and so "cannot cure deficiencies" in an EA. Id. at 1104. And, because the Bureau added the Obscure Routes back to the Steens Mountain transportation network only over the 2014-15 winter, while the Steens Mountain was largely inaccessible, ONDA did not have a chance to survey the Obscure Routes and respond to the photographs. Thus, the Bureau's failure to make the photographs available during the public comment period " 'caused the agency not to be fully aware of the environmental consequences of the proposed action, thereby precluding informed decisionmaking and public participation." Idaho Wool Growers , 816 F.3d at 1104. Accordingly, we vacate the Recreation Plan and remand. For the reasons explained above, we do not reach ONDA's substantive challenges to the Recreation Plan and we do not decide whether the Bureau should have prepared an EIS for the Recreation Plan. ONDA v. BLM , 625 F.3d at 1124. E. Costs Because we vacate and remand as to ONDA's NEPA claims, we also vacate the $4,937.99 cost award to the Bureau. Fed. R. Civ. P. 54(d)(1). AFFIRMED in part, VACATED in part, and REMANDED . The parties shall bear their own costs on appeal. ONDA agrees with this interpretation. Or, for routes within the Steens Mountain Wilderness, that existed as a matter of record in October 1976, when Congress enacted the FLPMA. We note, however, that the Bureau referred to the routes in the Travel Plan and the Recreation Plan as both "routes" and "roads." On remand, it would be prudent for the Bureau to clarify whether all the routes are roads, or whether some routes are trails. To the extent that the Board relied on "Route Analysis Forms" that the Bureau submitted on remand, that reliance was arbitrary and capricious. Whatever the forms' contents, the Bureau created them years after it released the Travel Plan EA and FONSI in 2007. Thus, the public never saw the forms and never had an opportunity to comment on them, "frustrating NEPA's goal of allowing the public the opportunity to play a role in the decisionmaking process." Great Basin , 844 F.3d at 1104 (internal quotation marks and alteration omitted). That said, we disagree with the Bureau and the County that an EIS is unnecessary because the Travel Plan simply maintained the "status quo." Not so. The Travel Plan added about 70 miles of motorized routes to the transportation network in the Steens Mountain Area and closed 1.23 miles of routes to motorized access. By contrast, "status quo" cases involve the "mere continued operation of a facility." See Burbank Anti-Noise Grp. v. Goldschmidt , 623 F.2d 115, 116 (9th Cir. 1980) (per curiam) (holding that the FAA did not need to prepare an EIS before providing financial assistance that would allow an entity to purchase and continue operating an existing airport); see also Upper Snake River Chapter of Trout Unlimited v. Hodel , 921 F.2d 232, 235 (9th Cir. 1990) (holding that the Bureau of Reclamation did not need to prepare an EIS before adjusting the flow of water from a dam, because the agency had been occasionally adjusting the water flow "for upwards of ten years").

Simmons v. Smith

KELLY, Circuit Judge. Lee M. Simmons appeals the decision of the district court granting summary judgment in favor of the National Park Service (NPS). Simmons argues that NPS violated § 706 of the Administrative Procedure Act (APA), 5 U.S.C. § 706, in establishing the boundaries of the Niobrara Scenic River Area (NSRA), both generally and with respect to his property. Simmons further argues that NPS violated the APA by treating him differently than his neighbors and acting in bad faith. I. The Niobrara River runs through northern Nebraska before flowing into the Missouri River along the border between Nebraska and South Dakota. In 1991, Congress enacted the Niobrara Scenic River Designation Act, Pub. L. No. 102-50, 105 Stat. 254 (codified in relevant part at 16 U.S.C. § 1274(a)(117) ), which amended the Wild and Scenic Rivers Act (WSRA), 16 U.S.C. §§ 1271 - 87, to place certain portions of the Niobrara under the administration of the Secretary of the Interior. Congress further directed the Secretary, "[a]fter consultation with State and local governments and the interested public," to "establish detailed boundaries" for the NSRA. 16 U.S.C. § 1274(a)(117), (b). The Secretary delegated this authority to NPS. By statute, "prior to the publication of boundaries" pursuant to § 1274(b), the preliminary boundaries were established at "one-quarter mile from the ordinary high water mark on each side of the river." Id. § 1275(d). These "[p]rovisional boundaries remain[ed] in place until amended by the action of the administering agency." Sokol v. Kennedy, 210 F.3d 876, 877 n.3 (8th Cir. 2000). However, that default does not "limit the possible scope of the study report to address areas which may lie more than one-quarter mile from the ordinary high water mark on each side of the river." 16 U.S.C. § 1275(d). Simmons owns land on the banks of the Niobrara. In the instant case, we are concerned particularly with his land on the north side of the river in what is called the Sparks Quadrant. Among other things, Simmons uses his land to operate a recreational outfitter business-called Niobrara River Ranch-which offers both canoeing and lodging. Simmons's land is situated directly downriver from the Berry Bridge, a major launch point for boats on the Niobrara, and includes both a large stand of ponderosa pines and substantial river "viewshed"-a term that refers to the area that is visible to a canoeist paddling down the river. Because Simmons's land is on the bank of the Niobrara, the preliminary boundary for the NSRA included a substantial portion of his property, namely all of the property within one-quarter mile of the river. Simmons has an interest in determining how much of his land falls within the final boundary determined by NPS, because the WSRA places limitations on certain projects and the use of land that falls within a designated area. See 16 U.S.C. §§ 1278, 1281(a), 1283. In 1992, NPS began the process of creating a General Management Plan (GMP) that articulated detailed, specifically-tailored boundaries for the NSRA. This process lasted over four years, and, in 1996, NPS promulgated its final boundary designation. This boundary was challenged by David Sokol, another landowner on the Niobrara (who is not a party in the instant litigation). After the district court granted summary judgment to NPS in that case, Sokol appealed to this court, and we reversed. We held that the standard used by NPS in its decision making did not satisfy the WSRA's declaration of policy. Sokol, 210 F.3d at 879. That provision of the statute explains: It is hereby declared to be the policy of the United States that certain selected rivers of the Nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, shall be preserved in free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations. 16 U.S.C. § 1271. In light of that statutory language, we held that the boundaries of the NSRA had to be drawn in such a way as to "protect and enhance the outstandingly remarkable values that caused the Niobrara River area to be included in the [Wild and Scenic River] System." Sokol, 210 F.3d at 879. We found that NPS had acted in violation of its statutory mandate by focusing on protecting merely "significant" and "important" values, and we remanded the case with instructions that "the Park Service should select boundaries that seek to protect and enhance the outstandingly remarkable values of the Niobrara Scenic River Area." Id. at 879-81. NPS started over. They engaged in a second boundary-drawing process, led by Paul Hedren, the NPS Superintendent of the Niobrara. This process began in 2000 and involved public meetings, conversations with local landowners and other stakeholders, and the compilation of scientific evidence. Throughout the process, in accordance with our opinion in Sokol, NPS sought to identify those aspects of the Niobrara that qualified as outstandingly remarkable values (ORVs) and to draw boundaries accordingly. NPS made extensive ORV findings, noting the presence of five types of ORVs in the NSRA: scenic, recreational, geologic, fish and wildlife, and paleontological (in the "other" category). See 16 U.S.C. § 1271. NPS also concluded that the historic and cultural values of the river-while interesting and important-were not outstandingly remarkable. See id. NPS identified two of these ORVs-recreational and paleontological-only in specific locations. A number of recreational values were enumerated including canoeing, kayaking, and tubing. For paleontological values, NPS noted that the river had been called "the best bone hunter's river in the world" and identified 15 internationally significant fossil sites, 37 nationally significant sites, and 106 regionally significant ones. These values were found to exist in discrete locations throughout the region. But the other three ORVs-scenic, geologic, and fish and wildlife-were found to exist more broadly. For scenic values, NPS determined that the designated section of the Niobrara "retains a timeless natural character with a splendid and nationally recognized mixing of distinct ecosystems, some at their farthest continental range." Its finding on geologic values was based on the uniqueness and abundance of the Niobrara Valley's varied waterfalls and the "inextricable links to the river's flora, fauna, and paleontology" that its geological features foster and enhance. As to fish and wildlife, NPS noted that the Niobrara Valley possesses a "profusion of habitats and animal species" that are an "outstanding example of Great Plains biological diversity," that this diversity fosters "hybridization and evolution," and that portions of the river are "potential critical habitat[s] for several threatened or endangered species." Thus, NPS determined that these three values existed "rim to rim" across the designated section of the river, encompassing over 150,000 acres of the Niobrara Valley. On the basis of these ORV determinations, the draft GMP laid out three "boundary alternatives." Boundary Alternative 1 represented the preliminary boundary created by the statute. It was not preferred by NPS, among other reasons, because it was "not tailored to provide maximum protection to the most outstandingly remarkable values." Boundary Alternative 2 was drawn to favor scenic and paleontological values specifically, with a diminished focus on the other values. This boundary was not preferred, but NPS noted that it did "meet congressional intent for Wild and Scenic river protection." Boundary Alternative 3-NPS's preferred boundary line-focused on protecting all five of the identified ORVs "as equitably as possible" and, therefore, also satisfied congressional intent. In the process of drafting and modifying these boundary alternatives, NPS consulted a wide range of organizations with interests in the Niobrara Valley. In 2001, NPS made presentations to many of these groups and revised the GMP (including the boundary alternatives) based on the suggestions received. In 2002, NPS made further revisions and alterations based on feedback after public review. This process stretched into January 2003. On January 9, 2003, the location of Boundary Alternative 3 on Simmons's land was altered to include approximately 25 additional acres on the North bank of the Niobrara in the Sparks Quadrant. Boundary Alternative 3-as relevant to this appeal-underwent no further changes, and NPS selected this Alternative as the final boundary for the NSRA. In 2005, NPS published notice of the draft GMP providing a 60-day window for public comment. NPS responded to all of the comments it received (including those submitted by Simmons) when it promulgated the final GMP in February 2007. Simmons filed various written objections to the NPS boundary (both generally and as to the boundary specifically on his property) in 2005, 2007, and 2012. When his comments did not cause NPS to alter the boundary, Simmons filed this lawsuit in 2013, challenging NPS's decision-making process under the APA. Both parties sought summary judgment. On all but one claim, the district court granted summary judgment to NPS, concluding that the boundary-line alterations challenged by Simmons were not arbitrary or capricious, and that NPS had not acted in bad faith or subjected Simmons to differential treatment. Simmons appeals that ruling. II. "We review de novo a district court's decision on whether an agency action violates the APA." Friends of the Norbeck v. U.S. Forest Service, 661 F.3d 969, 975 (8th Cir. 2011). As relevant here, we may set aside agency action under the APA only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) ; see also Sokol, 210 F.3d at 878. "An agency decision is arbitrary or capricious if: 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." Nat'l Parks Conserv. Ass'n v. McCarthy, 816 F.3d 989, 994 (8th Cir. 2016) (quoting Lion Oil Co. v. EPA, 792 F.3d 978, 982 (8th Cir. 2015) ). "Under this narrow standard, a court is not to substitute its judgment for that of the agency, yet the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts and the choice made." Id. (internal quotation marks omitted) (quoting Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co. (State Farm ), 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) ). Similarly, "a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." Chevron, U.S.A., Inc. v. Nat'l Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). III. Simmons first challenges NPS's determination of ORVs, arguing that the conclusion reached by NPS regarding the scope of scenic, geologic, and fish and wildlife ORVs is not consistent with our opinion in Sokol. Simmons does not dispute the scientific data or NPS's expertise in this area. Instead, he argues, NPS acted impermissibly in concluding that these ORVs extend from rim to rim across the Niobrara Valley. First, Simmons asserts that these specific ORV determinations are incompatible with Sokol. Second, he argues, more broadly, that an ORV of any type cannot exist from rim to rim across an entire river valley because such an ORV finding "is the legal equivalent of finding no ORVs at all." Further, he contends that NPS did not adequately identify the specific ORVs present on his property that would justify the disputed boundary. A. Sokol footnote 11 Simmons's first argument relies heavily on footnote 11 of our Sokol opinion, which admonished NPS for "selecting land ... simply to maximize the number of acres included in the" NSRA. 210 F.3d at 881 n.11. That consideration, we explained, did not comport with the statutory requirement that NPS select land to protect and enhance the ORVs present in the river area. We went on to note that we were "particularly troubl[ed]" by "the decision to include more than 10,000 acres of 'hypothetical' viewshed, land that a canoeist on the river would see if one assumed that there were no trees or foliage on the banks." Id. This, we held, was "a massively counterfactual assumption" because "60 to 70 per cent. of the Niobrara River is screened by dense trees and foliage." Id. Based on the record before us, we commented that much of this land was "ordinary, unstriking, and apparently unnecessary to protect the scenic values of the river." Id. In short, the inclusion of this land based on its "hypothetical" scenic value to a canoeist (who would be unable to actually see it) was not in keeping with the requirement that NPS focus on protecting the actual ORVs. See id. Simmons argues that this footnote establishes that his land does not contain scenic ORVs. But we must examine the language upon which Simmons relies in context. Sokol relied on NPS's candid admission that it had based its ORV determination-to the extent that it made one-on a hypothetical viewshed, and that its goal was not (as it should have been) ORV protection, but rather acreage maximization. These admissions made the agency's counterfactual assumptions "particularly troubling." However, because NPS employed the wrong standard, we did not tell NPS how it should determine ORVs on remand, nor did we limit NPS's discretion to consider new information and draw new conclusions about ORVs. When it returned to the drawing board, NPS followed Sokol. In the GMP, NPS explicitly defined the criteria it would follow in identifying ORVs of each type. For scenic ORVs, NPS used the following "Outstandingly Remarkable Criteria": The landscape elements of landform, vegetation, water, color, and related factors result in notable or exemplary visual features and/or attractions. When analyzing scenic values, additional factors such as seasonal variations in vegetation, scale of cultural modifications, and the length of time negative intrusions (such as power lines) are viewed may be considered. Scenery and visual attractions may be highly diverse over the majority of the river or river segment. NPS followed these criteria in identifying the specific plant communities and forest and prairie ecosystems that combine to make the scenic values outstandingly remarkable. NPS also noted the way that the scenic values overlapped and interacted with the geologic and fish and wildlife values. In short, Simmons does not identify any way that NPS's ORV identification process conflicted with our specific admonition in Sokol footnote 11, and we see none. B. "Rim to rim" ORV Simmons next argues that it is inconsistent with Sokol's more central holding-that NPS had used the incorrect standard, identifying "important" and "significant" values rather than "outstandingly remarkable" ones-for NPS to assert that any ORV can be present from rim to rim across the entire 150,000-acre Niobrara Valley. Simmons reasons as follows. In Sokol, we rejected the notion that NPS had "complete discretion." 210 F.3d at 878-79. Instead, we held, NPS had to make the boundary determination based on the standard contained in the WSRA, namely, "to protect and enhance the outstandingly remarkable values." Id. at 879. Finding a rim-to-rim ORV, Simmons asserts, must therefore run afoul of Sokol, because, if an ORV exists from rim to rim, then NPS has complete discretion to draw the boundary. However, this argument misreads Sokol and misunderstands the nature of discretion granted to the agency. As discussed above, in Sokol, we reversed NPS's boundary determination because the agency had not selected the land to be included on the basis of the "outstandingly remarkable values" standard required by the statute. In defending the standard that it had used, the agency argued, inter alia, that the statute left the decision entirely within its discretion. 210 F.3d at 878. We rejected this argument because, while the specific boundary-drawing provision gave no standard, NPS's argument "completely ignore[d] controlling language elsewhere in the [WSRA]." Id. That language required that the Niobrara (and all rivers within the Wild and Scenic Rivers System) be "administered in such manner as to protect and enhance" the ORVs that caused it to be included in the system. Id. (quoting 16 U.S.C. § 1281(a) ). We did not, however, go further to interpret or elaborate on how the ORV standard would apply in any particular instance. And, as a logical matter, finding the existence of one ORV from rim to rim across the entire valley is not the equivalent of finding no ORVs whatsoever. Even after the ORVs were identified, NPS was required to use those ORV determinations when setting the actual boundaries for the NSRA. See id. at 879. This was so regardless of the size of the area containing ORVs. And, as we noted in Sokol, "the [WSRA] does not require that the boundaries encompass all the outstandingly remarkable resources; this might be impossible given the acreage limitation [of § 1274(b) ]." Id. Thus, we see no implied or explicit conflict between our opinion in Sokol and NPS's determination, in light of the evidence, that certain ORVs extended across the entirety of the valley. C. Specific ORV Simmons also argues that NPS acted arbitrarily and capriciously in setting the boundary on his property because it did not identify specific ORVs that existed in that area. We agree with Simmons's premise to a certain extent, but, based on the facts of this case, we reach the opposite conclusion. In crafting the boundaries, NPS is required to use the ORV determinations as a guide to decide which land should be included within the boundary in order to protect and enhance the ORVs. But we have said that NPS is "not required to include only land with outstandingly remarkable values." Sokol, 210 F.3d at 879. In this case, NPS explained that Boundary Alternative 3 sought to balance the various ORVs "as equitably as possible," which made it preferable to the other identified alternatives. Thus, as long as the boundary placement was "rationally connected," State Farm, 463 U.S. at 43, 103 S.Ct. 2856, to the protection of ORVs, NPS was not required to identify a specific ORV on any specific piece of property. And Simmons does not allege that NPS acted contrary to its stated objective of protecting these values. Moreover, the record amply demonstrates that multiple ORVs were identified within the boundary line in question. Specifically, Simmons's land contains a large portion of viewshed that is directly downstream from Berry Bridge, which is a common launch point for recreational canoeists on the river. His land also contains a large and particularly impressive stand of ponderosa pine trees and habitats that support bald eagle foraging. Indeed, the final boundary line on Simmons's property tracks quite closely the extent of the viewshed and the ponderosa stand. Simmons does not dispute these facts. Instead, he relies on a statement by Hedren-made during a lengthy deposition -in which he said that he could not identify specific features on Simmons's property. But, read in context, that statement indicates confusion about the location of Simmons's property, not confusion about the existence of ORVs. At various other points in the deposition, Hedren clearly and specifically identified which ORVs motivated his boundary determination on this property. In sum, we see no flaw-either generally or related specifically to Simmons's property-in the public, thorough, and comprehensive process that NPS undertook to establish the boundaries of the NSRA. IV. Simmons also raises claims of bad faith and differential treatment, arguing that NPS drew the boundary line on his property where it did because Hedren and he had personal dislike for each other. Agencies may act arbitrarily and capriciously if they treat similarly-situated parties differently or if they act with bad faith. See Petroleum Commc'ns Inc. v. FCC, 22 F.3d 1164, 1172 (D.C. Cir. 1994) (differential treatment); Latecoere Int'l, Inc. v. U.S. Dept. of Navy, 19 F.3d 1342, 1356 (11th Cir. 1994) (bad faith). On the other hand, there is a well-established presumption that administrative officers are unbiased. See Schweiker v. McClure, 456 U.S. 188, 195, 102 S.Ct. 1665, 72 L.Ed.2d 1 (1982) (citing Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) ). Here, Simmons's argument relies entirely on select quotes from Hedren's deposition that, when read in context, do not prove his case. Thus, as to bad faith, we agree with the district court that "the evidence does not support this claim." And, indeed, the same is true regarding differential treatment. Simmons alleges that the district court did not examine all the evidence because, in its assessment of differential treatment, it looked only at the one landowner Simmons had identified "as an example of differing treatment." However, as the district court noted, that landowner was not treated differently and, both below and on appeal, Simmons identifies no facts that indicate NPS "treate[ed] similarly situated parties differently." See Petroleum Commc'ns, 22 F.3d at 1172. The district court looked at the only example that Simmons provided and correctly determined that no such differential treatment was evident. Based on the record and briefing before us, we agree. V. NPS engaged in a methodical, time-consuming boundary-drawing process. It used the appropriate statutory standard to identify oustandingly remarkable values and it drew a boundary line that sought to protect those values. There is no evidence in the record that leads us to conclude that NPS subjected Simmons to disparate treatment or acted in bad faith. For these reasons, we affirm the district court's grant of summary judgment in favor of NPS. The Honorable Richard G. Kopf, United States District Judge for the District of Nebraska. As to the one claim on which Simmons was granted summary judgment-relating to an entirely different parcel of land-the district court held that "[a]bsent any showing that the boundary change was made for the purpose of protecting and enhancing the outstandingly remarkable values of the Niobrara Scenic River Area, as opposed to maintaining the Area's acreage at a certain number, ... NPS's action was arbitrary and capricious." NPS has not appealed that ruling. NPS also had personnel canoe the entire length of the river to identify the actual, rather than hypothetical, viewshed. It appears NPS considered this in determining the locations of recreational ORVs, rather than scenic ORVs, because it represented what a recreational canoeist would actually see while canoeing down the river. We note this, nonetheless, because it is indicative of NPS's intent to address the concerns expressed in Sokol footnote 11. Nor do we see any issue with an ultimate finding that an ORV might extend across the entire valley. One need only consider the case of the Grand Canyon-or one of many other singular (and large) national treasures-to recognize that an outstandingly remarkable value might exist across an expansive area. Rather, we explained, The Park Service's duty was to establish detailed boundaries, within the acreage limits of Section 1274(b), that would protect and enhance the outstandingly remarkable values that caused the river area to be included in the Wild and Scenic Rivers System. This duty does not always bar the administering agency from including unremarkable land; indeed, the Act could require such inclusion where necessary to protect outstandingly remarkable resources, e.g. because of the need for buffer zones around resources or because of discontinuities in a resource's locations. Id. This deposition was granted, we note, solely "for the limited purpose of obtaining evidence that NPS officials acted in bad faith." For example, Simmons argues that Hedren "favored" Simmons's brother, Carl Simmons, and moved the boundary line on the property after he discovered that Lee Simmons, and not Carl, owned the property. The record does not support this argument. Hedren knew throughout the entire process that the ownership of the Simmonses' familial property was fluid and there is no indication that his understanding shifted around the time that the boundary line was moved. Simmons implies that Hedren preferred Carl because he said that Carl was "sensitive to the resources, to the values of the river." In the very next sentence, however, Hedren said the same thing about Simmons: "Lee was sensitive to the resources and the values."

Sturgeon v. Frost

Concurrence by Judge Nguyen OPINION NGUYEN, Circuit Judge: John Sturgeon would like to use his hovercraft in a national preserve to reach moose hunting grounds. The State of Alaska is fíne with that; the federal government is not. Sturgeon’s case turns on which entity—state or federal—gets to decide the matter. On remand from the Supreme Court, we again conclude that the federal government properly exercised its authority to regulate hovercraft use on the rivers within conservation system units in Alaska. I. A. The Yukon-Charley Rivers National Preserve conservation system unit (“Yukon-Charley”) is among the 104 million acres of land in Alaska set aside for preservation purposes by the Alaska National Interest Lands Conservation Act (“ANILCA”), 16 U.S.C. § 3101 et seq. (1980). Like other conservation system units created by ANILCA, Yukon-Charley was drawn around a mix of federal, state, Native Corporation, and private owners. Within the boundaries of the Yukon-Charley lies a stretch of the Nation River. Sturgeon would like to travel by hovercraft on this part of the river to get to moose hunting grounds located upstream from the preserve. Park Service regulations prohibit the use of hovercraft within “[w]a-ters subject to the jurisdiction of the United States located within the boundaries of the National Park System ... without regard to the ownership of submerged lands, tidelands, or lowlands.” 36 C.F.R. § 1.2(a)(3); see id. § 2.17(e). Alaska permits hovercraft on its waterways. Sturgeon contends that the Nation River belongs to Alaska and that the Park Service has no authority to regulate it. He seeks declaratory and injunctive relief preventing the Park Service from enforcing its hovercraft ban. B. ANILCA balanced the need to protect “the national interest in the scenic, natural, cultural and environmental values on the public lands in Alaska” with the need to provide “adequate opportunity for satisfaction of the economic and social needs of the State of Alaska and its people.” 16 U.S.C. § 3101(d). Thus, while ANILCA provided that conservation system units in Alaska generally “shall be administered ... under the laws governing the administration of [National Park Service system unit] lands,” id. § 410hh, it “specified that the Park Service could not prohibit on those lands certain activities of particular importance to Alaskans.” Sturgeon v. Frost, — U.S. —, 136 S.Ct. 1061, 1066, 194 L.Ed.2d 108 (2016). For example, Park Service regulations applicable nationwide prohibit hunting and snowmobiling for the most part, see 36 C.F.R. §§ 2.2, 2.18, whereas ANILCA permits, subject to reasonable regulations, “the use of snowma-chines ... for travel to and from villages and homesites,” 16 U.S.C. § 3170(a), and “the taking of ... wildlife for sport purposes and subsistence uses,” id. § 3201. II. “Section 103(c) of ANILCA ... addresses the scope of the Park Service’s authority over lands within the boundaries of conservation system units in Alaska.” Sturgeon, 136 S.Ct. at 1067. It provides as follows: Only those lands within the boundaries of any conservation system unit which are public lands (as such term is defined in this Act) shall be deemed to be included as a portion of such unit. No lands which, before, on, or after December ¾ 1980, are conveyed to the State, to any Native Corporation, or to any private party shall be subject to the regulations applicable solely to public lands within such units. If the State, a Native Corporation, or other owner desires to convey any such lands, the Secretary may acquire such lands in accordance with applicable law (including this Act), and any such lands shall become part of the unit, and be administered accordingly. 16 U.S.C. § 3103(c) (emphasis added). The parties dispute the meaning of section 103(c) and in particular what it means to “be subject to the regulations applicable solely to public lands within such units.” The key to understanding section 103(c) is the difference between “Federal lands” and “public lands.” ANILCA defines “public lands” as “land situated in Alaska which, after December 2, 1980, are Federal lands” except for land selected by the State of Alaska or a Native Corporation the title to which has not yet' been conveyed. Id. § 3102(3). Similarly, “Federal land” is defined as “lands the title to which is in the United States after December 2, 1980.” Id. § 3102(2). Simply put, Federal lands include land selections made by Alaska and Native Corporations but not yet transferred to them. Public lands do not. These land selections, while still formally belonging to the federal government, are not to be regulated as part of conservation system units. The first sentence of section 103(c) establishes that the land selections by Alaska and Native Corporations are not “deemed to be included as a portion of such unit[s]” because that distinction belongs “[o]nly” to “public lands.” Both the first and third sentences refer to public lands as being “a portion of’ or “part of’ the conservation system units in Alaska. This is distinct from lands that are merely “within such units,” a phrase used in the second sentence as shorthand for lands “within the boundaries of’ such units but not necessarily a part of them. Land “within such units” includes public lands, the land selections, and non-federal lands. See, e.g., Solid Waste Sites in Units of the National Park System, 59 Fed. Reg. 65,948, 65,949 (Dec. 22, 1994) (“[T]he phrase ‘within the boundaries’ is commonly employed to refer to both Federal land and nonfederally owned land or interests in land within the outer boundaries [of] a [National Park System] unit.”). The confusion in the second sentence stems from the awkward placement of “within such units.” The phrase is not modified by “solely.” See Sturgeon, 136 S.Ct. at 1070. Rather, it modifies “applicable.” Thus, “regulations applicable solely to public lands within such units” means regulations applicable within such units solely to public lands—as opposed to Federal lands. In other words: regulations that apply only to lands that are deemed part of the units themselves. Outside Alaska, all federally owned lands within conservation system units are deemed part of the unit. See 54 U.S.C. § 100501. “Alaska is different.” Sturgeon, 136 S.Ct. at 1070. The import of the second sentence is that Federal lands within conservation system units that have been transferred to a non-federal party—like Federal lands that have been selected for state or tribal use—are not “subject to” regulations specific to the conservation system units. Regulations applicable solely to public lands include Park Service regulations applicable nationwide and Alaska-specific regulations found in ANILCA. These contrast with regulations of general applicability, such as the Clean Air Act, that also affect non-public lands located within such units, such as the land selections and private lands. Section 103(c) directly responds to the controversy that “Congress ... stepped in to settle” when it enacted ANILCA. Sturgeon, 136 S.Ct. at 1066. Many Alaskans “were concerned that ... new monuments [designated by President Carter] would be subject to restrictive federal regulations.” Id. at 1065-66. By exempting Federal lands selected for state or tribal use from being regulated as a part of the unit, AN-ILCA serves one of its stated goals of providing “adequate opportunity for satisfaction of the economic and social needs of the State of Alaska and its people.” 16 U.S.C. § 3101(d). Of course, regulation by the Park Service serves ANILCA’s other goal of providing “sufficient protection for the national interest in the scenic, natural, cultural and environmental values.” Id. But that goal is expressly limited to “public lands” in Alaska. Id. Land that is transferred to or selected for non-federal entities is generally not subject to the regulation of conservation system units. However, non-public land is still subject to such regulation if the United States retains an interest in it because the land is public to the extent of the interest. That is clear from ANILCA’s definition of “land” -as “lands, waters, and interests therein.” Id. § 3102(1) (emphasis added). ANILCA recognizes that the federal government retains an interest in at least some otherwise non-public lands. It directs the Secretary of the Interior to “develop and transmit to ... Congress a conservation and management plan for each of the units of the National Park System established or [expanded] by [ANILCA].” Id. § 3191(a). One component of the plan is a description of any privately-owned areas within the unit, their purposes, the actual or anticipated activities in the privately-owned areas, the effects of such activities on the unit, and “methods (such as cooperative agreements and issuance or enforcement of regulations) of controlling the use of such activities to carry out the policies of [ANILCA] and the purposes for which such unit is established or expanded.” Id. § 3191(b)(7)(E) (emphasis added). Congress plainly expected that the Park Service could issue regulations governing conservation system units that would affect privately-owned lands. III. The hovercraft ban “do[es] not apply on non-federally owned lands and waters ... located within National Park System boundaries,” 36 C.F.R. § 1.2(b), except, as relevant here, on “[w]aters subject to the jurisdiction of the United States,” id. § 1.2(a)(3), and on “[o]ther ... waters over which the United States holds a less-than-fee interest, to the extént necessary to fulfill the purpose of the National Park Service administered interest and compatible with the nonfederal interest,” id. § 1.2(a)(5). The question is whether the Nation River is subject to the jurisdiction or an interest of the United States such that it is public land that the Park Service is authorized to regulate. A. Before Alaska gained statehood, the Submerged Lands Act “release[d] and re-linquishe[d] unto [the] States ... all right, title, and interest of the United States” to “the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters.” 43 U.S.C. § 1311(a)—(b). The Alaska Statehood Act secured these rights for Alaska. Pub. L. No. 85-508, § 6(m), 72 Stat. 343 (1958). In addition, Alaska enjoys similar rights under the equal footing doctrine. See United States v. Alaska, 521 U.S. 1, 6, 117 S.Ct. 1888, 138 L.Ed.2d 231 (1997). While “the United States can prevent lands beneath navigable waters from passing to a State upon admission to the Union by reserving those lands in federal ownership” for “an appropriate public purpose,” id. at 33-34, 117 S.Ct. 1888; see also 43 U.S.C. § 1313(a) (excepting from the Submerged Lands Act “lands expressly retained by ... the United States when the State entered the Un-ión”), we have held that the Nation River was navigable at statehood and that Alaska took title to the riverbed at that time. See Alaska v. United States, 201 F.3d 1154, 1160, 1166 (9th Cir. 2000). But lands submerged beneath inland waterways are distinct from the waterways themselves. “Ownership [of submerged lands]' may not be necessary for federal regulation of navigable waters .... ” Alaska, 521 U.S. at 42, 117 S.Ct. 1888. Under the Submerged Lands Act, “[t]he United States retains all its navigational servitude and rights in and powers of regulation and control of [submerged] lands and navigable waters for the constitutional purposes of commerce, navigation, national defense, and international affairs.” 43 U.S.C. § 1314(a). We have held that the navigational servitude “is not ‘public land’ within the meaning of ANILCA” because “the United States does not hold title to the ... servitude.” City of Angoon v. Hodel, 803 F.2d 1016, 1027 n.6 (9th Cir. 1986) (per curiam) (citing United States v. Va. Elec. & Power Co., 365 U.S. 624, 627-28, 81 S.Ct. 784, 5 L.Ed.2d 838 (1961)). We expanded that holding in Alaska v. Babbitt (Katie John I), deciding that Congress did not intend “to exercise its Commerce Clause powers over submerged lands and navigable Alaska waters” when it enacted ANILCA. 72 F.3d 698, 703 (9th Cir. 1995). Katie John I analyzed .the United States’ interest in navigable waters in Alaska under the reserved water rights doctrine. Under this doctrine, when the federal government “withdraws its land from the public domain and reserves it for a federal purpose,” the government impliedly “reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation.” Cappaert v. United States, 426 U.S. 128, 138, 96 S.Ct. 2062, 48 L.Ed.2d 523 (1976). The United States thus “acquires a reserved right in unappropriated water which vests on the date of the reservation and is superior to the rights of future appropriators.” Id. Whether a federally reserved water right is implicit in a federal reservation of public land depends on whether the government intended to reserve unappropriated water. Id. at 139, 96 S.Ct. 2062. “Intent is inferred if the previously unappropriated waters are necessary to accomplish the purposes for which the reservation was created.” Id. In Katie John I, we concluded that “[t]he United States has reserved vast parcels of land in Alaska for federal purposes through a myriad of statutes,” including ANILCA, and thereby has “implicitly reserved appurtenant waters, including appurtenant navigable waters, to the extent needed to accomplish the purposes of the reservations.” 72 F.3d at 703 & n.10. This reservation of water rights gave the United States “interests in some navigable waters.” Id. at 703. We held that ANILCA’s “definition of public lands includes those navigable waters in which the United States has an interest by virtue of the reserved water rights doctrine.” Id. In John v. United States (Katie John II), we decided without discussion that Katie John I’s holding “should not be disturbed or altered.” 247 F.3d 1082, 1083 (9th Cir. 2001) (en banc) (per curiam). In Katie John III, we considered regulations implementing Title VIII of ANILCA pertaining to subsistence management on public lands, 36 C.F.R. pt. 242. These regulations “included within the definition of ‘public lands’ ”—and thus applied to—“all navigable and non-navigable water within the outer boundaries of ... 34 listed land units,” including Yukon-Charley. Katie John III, 720 F.3d at 1232; see 36 C.F.R. § 242.3(c)(28). As here, it was argued that State and privately-owned lands located within a conservation system unit, referred to as “inholdings,” were not public lands and thus not subject to regulation. Id. at 1233. We upheld the agency’s inclusion of waters that lie on inholdings in the definition of public lands. Id. We reasoned that water rights impliedly acquired by the United States are not forfeited or conveyed to third parties along with the inholdings. Id. Because the water bodies were “actually situated within the boundaries of federal reservations,” it was “reasonable to conclude that the United States ha[d] an interest in such waters for the primary purposes of the reservations.” Id. B. We are bound under our Katie John precedent to reach a similar conclusion here. To begin with, ANILCA’s definition of “public lands” applies throughout the statute. It would be anomalous if we treated the regulation at issue in Katie John III regarding the geographic scope of regulations implementing Title VIII, 36 C.F.R. § 242.3, as employing a different construction of “public lands” than applicable elsewhere in ANILCA. The regulation does not define “public lands.” By merely referencing the term, which is defined globally in the statute, the regulation implies that there is but a single definition. While Katie John III involved ANIL-CA’s rural subsistence priority, that was only one of the purposes for which ANIL-CA reserved lands as conservation system units. Katie John III recognized that “water rights may be essential to a purpose of the reservation other than subsistence.” 720 F.3d at 1240. Just as important was ANILCA’s purpose of “providing] sufficient protection for the national interest in the scenic, natural, cultural and environmental values on the public lands in Alaska.” 16 U.S.C. § 3101(d). Three years before the statute’s enactment, President Carter withdrew and reserved the land for Yukon-Charley “for the protection of ... historical, archeological, biological, [and] geological ... phenomena” including habitat for “isolated wild populations of Dali sheep, moose, bear, wolf, and other large mammals.” Proclamation No. 4626, 43 Fed. Reg. 57,113 (Dec. 5, 1978). In particular, he “reserved all water necessary to the proper care and management of those objects protected by [Yukon-Charley] and for [Yukon-Charley’s] proper administration.” Id. at 57,114. In that vein, Congress specified in section 201 of ANILCA that Yukon-Charley “shall be managed for the following purposes, among others”: To maintain the environmental integrity of the entire Charley River basin, including streams, lakes and other natural features, in its undeveloped, natural condition for public benefit and scientific study; to protect habitat for, and populations of, fish and wildlife, including but not limited to the peregrine falcons and other raptorial birds, caribou, moose, Dali sheep, grizzly bears, and wolves.... 16 U.S.C. § 410hh(10) (emphasis added). Consistent with this intent, Congress has authorized the Secretary of the Interi- or to “prescribe regulations ... concerning boating and other activities on or relating to water located within System units, including water subject to the jurisdiction of the United States.” 54 U.S.C. § 100751(b). The Park Service’s hovercraft ban, applicable to federally managed conservation areas nationwide, “was adopted pursuant to [§ ] 100751(b).” Sturgeon, 136 S.Ct. at 1067. To be more precise, the hovercraft ban was adopted pursuant to § 100751(b)’s statutory predecessor, which similarly provided the Secretary of the Interior with the authority to “[pjromulgate and enforce regulations concerning boating and other activities on or relating to waters located within areas of the National Park System, including waters subject to the jurisdiction of the United States.” 16 U.S.C. § 1a-2(h) (1982). This earlier version was enacted four years before ANILCA. Act to Amend the Administration of the National Park System, Pub. L. No. 94-458, 90 Stat. 1939 (1976). ANILCA specified that it did not in any way affect “any law governing appropriation or use of, or Federal right to, water on lands within the State of Alaska,” and did not supersede, modify, or repeal “existing laws applicable to the various Federal agencies which are authorized to develop or participate in the development of water resources or to exercise licensing or regulatory functions in relation thereto.” 16 U.S.C. § 3207(1), (3). The hovercraft ban is also consistent with Congressional intent. Hovercraft were prohibited “because they provide virtually unlimited access to park areas and introduce a mechanical mode of transportation into locations where the intrusion of motorized equipment by sight or sound is generally inappropriate.” General Regulations for Areas Administered by the National Park Service, 48 Fed. Reg. 30,252, 30,258 (June 30, 1983). The hovercraft ban thus serves the purpose of keeping waterways in their “undeveloped natural condition ... to protect [wildlife] habitat.” 16 U.S.C. § 410hh(10). C. Sturgeon argues that “[r]eserved water rights are not a ‘title’ interest.” While that is true in a narrow, technical sense, see Fed. Power Comm’n v. Niagara Mohawk Power Corp., 347 U.S. 239, 247 n.10, 74 S.Ct. 487, 98 L.Ed. 666 (1954) (“Neither sovereign nor subject can acquire anything more than a mere usufructuary right [in the water itself]....”), by the same logic the State also lacks a “title” interest in the waters above its riverbeds. Water cannot be owned, see, e.g., 2 Amy K. Kelley, Waters and Water Rights § 36.02 (3d ed. 2017) (observing the Supreme Court’s impatience “with claims of absolute ‘ownership’ by either [state or federal] government”), but “the right of [water’s] use, as it flows along in a body, may become a property right.” Niagara Mohawk Power Corp., 347 U.S. at 247 n.10, 74 S.Ct. 487. The word “title” has many meanings. Equitable title, for example, is a beneficial interest in property. See, e.g., R.T. Vanderbilt Co. v. Babbitt, 113 F.3d 1061, 1067 n.6 (9th Cir. 1997) (using the phrases “vested interest” and “equitable title” interchangeably). Thus, “title” to an “interest” in water almost certainly means a vested interest in the water, such as a reserved water right. But even if we were uncertain, Katie John I already decided the matter when it held that ANILGA’s “definition of public lands includes those navigable waters in which the United States has an interest by virtue of the reserved water rights doctrine.” 72 F.3d at 704. That could not be so unless title to an interest in Alaska’s navigable waters is in the United States. See 16 U.S.C. § 3102(1)—(3). Sturgeon also argues that “[t]he reserved water rights doctrine is premised on the need for actual use and withdrawal of water” and that the Park Service has shown no need for a specific quantity of water because the water in conservation system units is. not scarce. Katie John III forecloses that argument. There was similarly “no suggestion that any federal reservation along any Alaskan waters risks being turned into a ‘barren waste’ ..., or a substantially diminished pool ..., or is in any way short of water.” 720 F.3d at 1238. For that reason, in determining the geographic scope of the United States’ reserved water rights, Katie John III “include[d] ... all the bodies of water on which the United States’ reserved rights could at some point be enforced—ie., those waters that are or may become necessary to fulfill the primary purposes of the federal reservation at issue.” Id. at 1231 (emphasis added). Here, one of the reservation’s primary purposes is to protect fish. The diminution of water in any of the navigable waters within Yukon-Ohar-ley’s boundaries would necessarily impact this purpose, giving rise to a reserved water right. Sturgeon points out that some 18 million acres within ANILCA-established conservation system units, approximately one-sixth of the total, are land selections for Native Corporations. He worries that federal regulation of navigable waters within the units will result in “economic catastrophe” to native shareholders by “impeding any efforts ... to productively utilize their lands.” Even if true, that is not at issue in this case. Sturgeon lacks standing to assert hypothetical claims on the Native Corporations’ behalf. In any event, “Congress clearly did not state in ANILCA that subsistence uses are always more important than ... other uses of federal lands; rather, it expressly declared that preservation of subsistence resources is a public interest and established a framework for reconciliation, where possible, of competing public interests.” Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 545-46, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). Should Sturgeon’s concerns materialize, they can be resolved in an appropriate case. IV. ANILCA section 103(c) does not limit the Park Service from applying the hovercraft ban on the Nation River in Yukon-Charley because, under our Katie John precedent, the United States has an implied reservation of water rights, rendering the river public lands. Therefore, the district court’s order granting summary judgment to defendants is AFFIRMED. . We previously upheld as reasonable an agency determination that certain regulations specific to Alaska units applied to land selections as well as Federal lands. See John v. United States (Katie John III), 720 F.3d 1214, 1244-45 (9th Cir. 2013) (construing 36 C.F.R. § 242.4(2)). The basis for this holding was the apparently “inconsistent” directive in section 906(o)(2) of ANILCA: "Until conveyed, all Federal lands within the boundaries of a conservation system unit ... shall be administered in accordance with the laws applicable to such unit.” 43 U.S.C. § 1635(o)(2). Subsection (o), however, concerns land withdrawals—not land selections—and it expressly does not apply to those subsections of § 1635 pertaining to land selections. See id. § 1635(o)(1). Regardless, Katie John III acknowledged that "[s]ection 102 of ANILCA expressly excludes selected-but-not-yet-conveyed lands from the definition of ‘public lands.’ ” Katie John III, 720 F.3d at 1243. . Of course, Park Service regulations applicable to conservation system units nationwide may be modified by Alaska-specific regulations. See 36 C.F.R. § 13.2(a). . The parties disagree about the Park Service's authority to regulate lands to and in which the United States has no title or interest by enacting regulations that apply to public and non-public land alike. We need not decide whether such a regulation would be enforceable on non-public land on the ground that it is not "applicable solely to public lands.” 16 U.S.C. § 3103(c). . Sturgeon, suggesting otherwise, quotes the Supreme Court's statement that "the Submerged Lands Act transferred 'title to and ownership of the submerged lands and waters.” United States v. California, 436 U.S. 32, 40, 98 S.Ct. 1662, 56 L.Ed.2d 94 (1978) (emphasis added) (quoting 43 U.S.C. § 1311(a)). We do not understand the Supreme Court to have breezily adopted an interpretation of the Submerged Lands Act at odds with the statute’s plain meaning. In contrast to ANILCA, which includes “waters" within the definition of "lands,” the Submerged Lands Act distinguishes "lands” from the various "waters” lying above them. 43 U.S.C. § 1301(a). California involved a dispute over the right to license kelp harvesting, see 436 U.S. at 35 n.8, 98 S.Ct. 1662; neither "ownership of” nor rights to the waters was at issue. Presumably, the Court used “submerged lands and waters” to refer to submerged lands and water resources. See 43 U.S.C. § 1301(e) ("The term 'natural resources’ includes ... kelp.... ”). . The Title VIII regulations “apply on all public lands” within some conservation system units, id. § 242.3(b), but “exclud[e] marine waters” within others, id. § 242.3(c). Outside of the enumerated conservation system units, Title VIII regulations “apply on all other public lands, other than to the military, U.S. Coast Guard, and Federal Aviation Administration lands that are closed to access by the general public." Id. § 242.3(d). . The hovercraft ban was implemented in 1983. See General Regulations for Areas Administered by the National Park Service, 48 Fed. Reg. 30,252, 30,258 (June 30, 1983). Section 100751(b) took effect in 2014 when Congress added Title 54 to consolidate “provisions relating to the National Park Service and related programs” in "one distinct place.” H.R. Rep. No. 113-44, at 2 (2013).

Sturgeon v. Frost

NGUYEN, Circuit Judge, with whom Circuit Judge NELSON joins, concurring: We are bound by our Katie John decisions to analyze this case under the reserved water doctrine. That is unfortunate. A reserved water right is the right to a sufficient volume of water for use in an appropriate federal purpose. See John v. United States (Katie John III), 720 F.3d 1214, 1226 (9th Cir. 2013) (“[Ajpplications of the federal reserved water rights doctrine have focused on the amount of water needed for a specific federal reservation, rather than the locations of water sources that might generally be needed...This case has nothing to do with that. Rather, it is about the right to regulate navigation on navigable waters within an Alaska national preserve. That is a Commerce Clause interest and should be analyzed as such. Alaska v. Babbitt (Katie John I), 72 F.3d 698 (9th Cir. 1995), expressed two concerns with analyzing regulatory issues under the navigational servitude or, more generally, the Commerce Clause. One concern was that by treating the federal government’s power to regulate under the Commerce Clause as an interest in water, we render ANILCA’s definition of Federal lands meaningless because the United States cannot have “title to” such an interest. 72 F.3d at 704. But that is no less true of the United States’ ability to have “title to” a reserved water right. See John v. United States (Katie John II), 247 F.3d 1032, 1047 (9th Cir. 2001) (Kozinski, J., dissenting) (“[A] usufructuary right does not give the United States title to the waters or the lands beneath those waters.”). And treating either interest—a navigational servitude or a reserved water right—as a property interest to which the United States holds title is a reasonable interpretation of the statute. The Supreme Court has referred to navigable waters as “the public property of the nation” insofar as “[t]he power to regulate commerce comprehends [federal] control for that purpose, and to the extent necessary.” United States v. Rands, 389 U.S. 121, 123, 88 S.Ct. 265, 19 L.Ed.2d 329 (1967) (quoting Gilman v. City of Philadelphia, 70 U.S. (3 Wall.) 713, 724-25, 18 L.Ed. 96 (1865)). Katie John Ts textual concern misses a larger point: even if the federal interest in navigable waters under the Commerce Clause is not a property right at all, it is a power “paramount to ... proprietary rights of ownership, or the rights of management, administration, leasing, use, and development of the lands and natural resources [of] the respective States.” 43 U.S.C. § 1314(a); see also New Eng. Power Co. v. New Hampshire, 455 U.S. 331, 338 n.6, 102 S.Ct. 1096, 71 L.Ed.2d 188 (1982) (‘Whatever the extent of the State’s proprietary interest in the river, the pre-eminent authority to regulate ... resides with the Federal Government.”). The proper exercise of the Commerce Clause power is “not an invasion of any private property rights in the stream or the lands underlying it.” United States v. Cherokee Nation of Okla., 480 U.S. 700, 708, 107 S.Ct. 1487, 94 L.Ed.2d 704 (1987) (quoting Rands, 389 U.S. at 123, 88 S.Ct. 265). Thus, whether the navigational servitude is “public land” or not is irrelevant. ANILCA expressly left in place federal jurisdiction to regulate the navigable waters. See 16 U.S.C. § 3207 (“Nothing in this Act shall be construed as limiting or restricting the power and authority of the United States or ... as expanding or diminishing Federal or State jurisdiction, responsibility, interests, or rights in water resources development or control....”). Katie John I's other concern was that reliance on the Commerce Clause would allow “a complete assertion of federal control” over “all [navigable] waters in Alaska.” 72 F.3d.at 704. But the United States’ power to regulate activity within the sphere of federal interests on navigable waters is not an exclusive right. States may regulate their waterways to the extent their regulations do not conflict with federal ones. See Barber v. Hawai'i, 42 F.3d 1185, 1191 (9th Cir. 1994) (“The purpose of [the Submerged Lands Act] was not for the Federal Government to retain exclusive jurisdiction over navigation of the waters above the submerged lands, but for the Federal Government to retain concurrent jurisdiction over those waters.”); see also Courtney v. Goltz, 736 F.3d 1152, 1160 (9th Cir. 2013) (holding that states may regulate business franchises on navigable waters so long as they do not “encroach on the federal commerce power”). Although Katie John I purported to eschew the Commerce Clause as a source of federal regulatory power, it conceded that the reserved water rights doctrine originates in part in the Commerce Clause. 72 F.3d at 703 (citing Cappaert v. United States, 426 U.S. 128, 138, 96 S.Ct. 2062, 48 L.Ed.2d 523 (1976)). In fact, the doctrine arises solely from the Commerce Clause insofar as Alaska’s navigable waters are concerned. The doctrine’s other source, the Property Clause, merely “permits federal regulation of federal lands.” Cappaert, 426 U.S. at 138, 96 S.Ct. 2062 (citing U.S. Const. art. IV, § 3). Alaska’s navigable waters are not federal lands in the usual (non-ANILCA) sense because the riverbeds by default now belong to Alaska. It is the Commerce Clause that “permits federal regulation of navigable streams” regardless of who owns the land beneath. Id. (citing U.S. Const. art. I, § 8). Katie John I described its own holding as “inherently unsatisfactory.” 72 F.3d at 704. We have since criticized it as a “problematic solution to a complex problem, in that it sanctioned the use of a doctrine ill-fitted to determining which Alaskan waters are ‘public lands.’” Katie John III, 720 F.3d at 1245. I could not agree more. I would adopt the well-reasoned approach set forth in Judge Tallman’s concurrence to Katie John II. Rather than continuing to shove a square peg into a hole we acknowledge is round, we should embrace a Commerce Clause rationale for federal regulation of Alaska’s navigable waters.

Herr v. United States Forest Service

OPINION SUTTON, Circuit Judge. David and Pamela Herr bought lakefront property on Crooked Lake in the Upper Peninsula of Michigan, hoping to use the lake’s waters for recreational boating and fishing. The United States Forest Service had other plans. Most of Crooked Lake lies in the federally owned Sylvania Wilderness yet some of it remains under private ownership. Congress gave the Forest Service authority to regulate any use of Crooked Lake and nearby lakes “subject to valid existing rights.” The Forest Service promulgated two regulations, one prohibiting gas-powered motorboats, the other limiting electrically powered motorboats to no-wake speeds throughout the wilderness area. Both regulations exceed the Forest Service’s power as applied to the Herrs and the other private property owners on the lake. Under Michigan riparian-rights law, in truth littoral-rights law, lakeside property owners may use all of a lake, making the Herrs’ right to use all of the lake in reasonable ways the kind of “valid existing rights” that the Forest Service has no warrant to override. I. Crooked Lake stretches three miles from one end to the other connected by a series of meandering channels and bays. Nestled within an old growth forest, the lake offers a variety of outdoor activities for public and private visitors from kayaking to bird watching to hiking along its shore. Fishing apparently attracts a lot of visitors as well, as the glacier lakes in the area contain “world-class smallmouth bass fisheries.” Herr v. U.S. Forest Serv., 803 F.3d 809, 813 (6th Cir. 2015). Ninety-five percent of the land surrounding the lake belongs to the federally protected Sylvania Wilderness, a nature preserve open to the public. The remaining five percent, positioned in the northern bay, belongs to approximately ten private landowners who own the property under state law. The United States first purchased land in the area in 1966, about 14,000 acres surrounding the southern portion of Crooked Lake, to supplement the Ottawa National Forest. In 1987, Congress enacted the Michigan Wilderness Act, 101 Stat. 1274, dedicating these and other lands to the National Wilderness Preservation System as part of the Sylvania Wilderness, an area encompassing over 18,000 acres and 36 lakes. “Subject to valid existing rights,” the Michigan Wilderness Act directs the Forest Service to administer this area “in accordance with the provisions of the Wilderness Act of 1964.” Pub. L. No. 100-184, § 5, 101 Stat. 1274, 1275-76 (1987). The Wilderness Act of 1964 provides that the Forest Service, a branch of the Department of Agriculture, “shall be responsible for preserving the wilderness character” of the land. 16 U.S.C. § 1133(b). It also addresses motorboat use, explaining that “subject to existing private rights ... there shall be ... no use of ... motorboats” within any wilderness area. Id. § 1133(c). “[WJhere these uses have already become established,” the Act provides that they “may be permitted to continue subject to such restrictions as the [Forest Service] deems desirable.” Id. § 1133(d)(1). In 1992, the Forest Service amended the management plan for the Ottawa National Forest. Through what became known as Amendment No. 1, the Service prohibited the use of sailboats and houseboats on all portions of Crooked Lake within the Syl-vania Wilderness. In 1993, several landowners filed a lawsuit challenging the prohibitions, see Stupak-Thrall v. United States, 843 F.Supp. 327, 328-29 (W.D. Mich. 1994), ominously referred to as Stupak-Thrall I. Stupakr-Thrall I ended in a victory for the Forest Service but not for the law of this Circuit. By an equally divided vote, the en banc court affirmed the district court’s decision to uphold Amendment No. 1, allowing the sailboat and houseboat restrictions to remain but leaving no controlling law in its wake. Stupak-Thrall v. United States, 89 F.3d 1269 (6th Cir. 1996) (en banc). Neither the concurring nor the dissenting opinions at the en banc stage, nor indeed the vacated panel decision in Stupak-Thrall I, agreed with the district court’s rationale for upholding these restrictions. Compare Stupak-Thrall, 89 F.3d at 1271 (Moore, J., concurring), with id. at 1290 (Boggs, J., dissenting); Stupak-Thrall v. United States, 70 F.3d 881, 889 (6th Cir. 1995) (vacated). The Forest Service issued another amendment to its plans for Crooked Lake in 1995. Known as Amendment No. 5, it prohibited the use of “any motor or mechanical device capable of propelling a watercraft by any means” on the wilderness portion of Crooked Lake. R. 49-4 at 1. This amendment came with an exception: one electric motor no greater than 24 volts in size or 48 pounds of thrust. Amendment No. 5 also prohibited the operation of any watercraft “in excess of a ‘slow-no wake speed,’ ” defined as a maximum of five miles per hour. Id.) R. 50-8 at 28. The Forest Service eventually incorporated these restrictions into the 2006 Forest Plan and a subsequent 2007 Forest Order, which subjected violators of Amendment No. 5 to criminal liability. Kathy Stupak-Thrall, once again joined by the Gajewskis, filed a second lawsuit. See Stupak-Thrall v. Glickman, 988 F.Supp. 1055 (W.D. Mich. 1997) (Stupak-Thrall II). The property owners won this round, securing an injunction prohibiting enforcement of Amendment No. 5. The district court held that the motorboat restrictions interfered with Thrall’s “ ‘valid existing right’ to use gas motor boats on Crooked Lake” and thus fell outside the Forest Service’s regulatory authority. Id. at 1062. It also held that Amendment No. 5, as applied to Thrall and the Gajewskis, effected a regulatory taking under the Fifth Amendment. Id. at 1064. After this decision, the Forest Service “facilitatefd] the sale of the Gajewski property ... to a third-party conservation organization,” The Conservation Fund, which agreed “to resell the property after encumbering it with a conservation easement” paid for by the Forest Service. R. 53-44 at 13. Because this development “substantially” reduced motorboat use on Crooked Lake, the Forest Service voluntarily dismissed its appeal. Id. That left the other piece of property involved in that case protected by the injunction. To this day, Kathy Stupak-Thrall (and her guests) remain the only people free to use motorboats, though not sailboats or houseboats, on all of Crooked Lake. When the Amendment No. 5 regulations first went into effect, David and Pamela Herr were occasional visitors to Crooked Lake. In 2010, they made a commitment to the place, purchasing two waterfront lots on the lake’s northern bay. The Herrs bought the land with the intention of using gas-powered motorboats. The seller confirmed these intentions, telling the Herrs that he had used motorboats in the past “without hindrance by the Forest Service.” R. 4 at 11. That turned out to be true for the Herrs as well, at first. The Forest Service not only allowed such use at the time but facilitated it for them and others. It regularly sold boating permits to visitors and residents—allowing them access to the lake—and allowed motorboat use through its public boat landing, located in a federally-owned portion of the northern bay just outside the wilderness area. The Forest Service changed course in 2018. It stopped offering motorboat access at the landing dock and sent a letter to the Herrs informing them that it planned to “fully enforce” the existing motorboat restrictions on the federal wilderness portion of the lake, though not the private portion of the lake. R. 4-5 at 2. The Herrs sued the Forest Service under the Administrative Procedure Act (APA), seeking to enjoin it from enforcing the motorboat restrictions against them. See 5 U.S.C. § 702. Two environmental-protection organizations and two property owners (Tim Schmidt and Sylvania Wilderness Cabins) intervened to support the Forest Service. At the Forest Service’s urging, the district court dismissed the case. It held that the federal courts lacked subject matter jurisdiction over the dispute because the statute of limitations had run on any APA challenges to the 2007 Forest Order. We reversed. The limitations period, we explained, amounted to a claims-processing rule and did not create a limit on our subject matter jurisdiction. The limitations period had not lapsed anyway, we added, because the Herrs never had an opportunity to challenge the validity of the rule’s application to them until 2010, when they bought the land, and the Service had not enforced Amendment No. 5 against them until 2013. Herr, 803 F.3d at 813, 819. On remand, the district court ruled for the Forest Service again, this time on the merits. The court held that the Herrs’ rights to use Crooked Lake did not “exist” at the time of the Michigan Wilderness Act’s enactment, meaning that the reservation of “valid existing rights” did not apply to them. Herr v. U.S. Forest Serv., 212 F.Supp.3d 720, 727-28 (W.D. Mich. 2016). Here we are. Again. II. After nearly a quarter century of litigation over the recreational uses of Crooked Lake, the parties share some common ground about the resolution of today’s dispute. The parties agree with, or at least do not dispute, these features of the legal landscape. One: The Property Clause of the United States Constitution enables Congress to “make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” U.S. Const, art. IV, § 3, cl. 2. Though Congress has broad discretion to determine what regulations it “needs” on its own property, see Kleppe v. New Mexico, 426 U.S. 529, 539-40, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976), it does not have the same authority over private property, see Camfield v. United States, 167 U.S. 518, 17 S.Ct. 864, 42 L.Ed. 260 (1897). If private property affects public lands, the government may regulate the private property to the extent needed to “protect[ ]’r the relevant “federal property.” Kleppe, 426 U.S. at 538, 96 S.Ct. 2285 (discussing Camfield)-, see Allison H. Eid, The Property Clause and New Federalism, 75 U. Colo. L. Rev. 1241, 1242 (2004). By way of example, Congress has authority to prevent an individual from leaving an unmonitored fire near any public “forest, timber, or [ ] inflammable material,” even if the fire is on private property. United States v. Alford, 274 U.S. 264, 266-67, 47 S.Ct. 597, 71 L.Ed. 1040 (1927). Congress likewise may prohibit private landowners from fencing in public property, though the fences remain on the private side of the property line. Camfield, 167 U.S. at 525, 17 S.Ct. 864. Two: The national government exercised its Property Clause power here through the Michigan Wilderness Act, which granted the Forest Service authority over the Sylvania Wilderness. This specific grant of authority allowed the Forest Service to regulate the public’s use of Crooked Lake for boating and related recreation, “subject to valid existing rights.”' Three: State-law riparian and littoral rights represent a form of protected rights under the Act. See Forest Service Manual § 2320.5(16), http://www.fs.fed.us/ cgibin/Directives/get_dirs/fsm?2300; Forest Service Br. 25. Riparian rights give property owners authority to use rivers that run through or adjacent to their property. Dyball v. Lennox, 260 Mich.App. 698, 680 N.W.2d 522, 526 (2004). Littoral rights give property owners authority to use lakes on or adjacent to their property. Bott v. Comm’n of Nat. Res. of State of Mich. Dep’t of Nat. Res., 415 Mich. 45, 327 N.W.2d 838, 841 (1982). This case concerns littoral rights. Under Michigan law, a littoral landowner owns the rights to the bed of any inland lake, like Crooked Lake, “to the thread or midpoint of the water.” Id. at 841; Lorman v. Benson, 8 Mich. 18, 22 (1860). But littoral landowners also share a right to the reasonable use of the water’s full surface. Bott, 327 N.W.2d at 842; see 78 Am. Jur. 2d, Waters § 35; Holton v. Ward, 303 Mich.App. 718, 847 N.W.2d 1, 4-6 (2014). That means the surface of Crooked Lake, even the part in the Sylvania Wilderness, does not belong exclusively to the federal government. So too of the surface of Crooked Lake outside the Syl-vania Wilderness; it does not belong exclusively to the State or the private property owners. The surface belongs jointly to the federal government and the private owners of state land on Crooked Lake, both of which maintain a littoral right to “reasonable use” of the lake’s surface. See Tennant v. Recreation Dev. Corp., 72 Mich. App. 183, 249 N.W.2d 348, 349 (1976); Rice v. Naimish, 8 Mich.App. 698, 155 N.W.2d 370, 372 (1967); see also Yates v. City of Milwaukee, 77 U.S. (10 Wall.) 497, 499, 19 L.Ed. 984 (1870); Hilt v. Weber, 252 Mich. 198, 233 N.W. 159, 168 (1930). With these background principles in place, we can turn to the question at hand: Does the Forest Service’s ban on using any motorboats or any other boat that exceeds five miles per hour violate the “[1] subject to [2] valid existing [3] rights” clause of the Michigan Wilderness Act? Yes, as an examination of each part of the clause confirms. “Subject to.” “[SJubject to” means “subordinate” or “subservient.” Black’s Law Dictionary 1278 (5th ed. 1979). That means the Forest Service’s regulations must respect the Herrs’ littoral rights, as the Service’s ability to regulate begins where the Herrs’ “valid existing rights” end. To the extent the Herrs have the right to use a motorboat under Michigan law on Crooked Lake, the Forest Service must honor that right—must in short be “subject to” it. “Existing.” But did these littoral rights exist at the time Congress passed the Michigan Wilderness Act in 1987? Yes. Littoral rights, like most property rights, run with the land. Thompson v. Enz, 379 Mich. 667, 154 N.W.2d 473, 483 (1967) (opinion of Kavanagh, J.). The question is not whether the Herrs had littoral rights on Crooked Lake before Congress passed the Act. It is whether the prior property owners had those rights before Congress passed the Act. They did. And they sold those rights along with the rest of the property to the Herrs in 2010. In reaching a contrary conclusion, the district court erred, as the Forest Service concedes. The Act does not refer to “valid rights of existing owners”; it refers to “valid existing rights.” Because littoral and riparian rights run with the land, the Herrs purchased those “existing” rights along with others when they bought the Crooked Lake property. “Valid Rights.” That brings us to the nub of the dispute. As the Forest Service sees it, littoral and riparian rights permit property owners to use the waters only in reasonable ways, and a ban on motorboat use and a five-mile-an-hour limit on other boat use amounts to a reasonable limit for a remote body of water like Crooked Lake. The premise is correct. State law may indeed impose reasonable limits on littoral and riparian rights. See Mich. Comp. Laws § 324.80108; Miller v. Fabius Twp. Bd., St. Joseph Cty., 366 Mich. 250, 114 N.W.2d 205, 208 (1962). But the conclusion is not. When the statute refers to “valid existing rights,” it asks whether the property owners have such rights under state law, not federal law, and certainly not federal law as construed by a federal agency. The Herrs plainly have such rights under state law, as ample Michigan authorities confirm. Recreational boating, the Michigan courts have repeatedly indicated, amounts to a reasonable use. See Burt v. Munger, 314 Mich. 659, 23 N.W.2d 117, 119-20 (1946); Rice, 155 N.W.2d at 372; People v. Hulbert, 131 Mich. 156, 91 N.W. 211, 211-12, 218 (1902); Pierce v. Riley, 81 Mich. App. 39, 264 N.W.2d 110, 114 (1978); Tennant, 249 N.W.2d at 349. Not just these legal authorities, but the facts as well, point in this direction. Landowners and visitors have used motorboats on Crooked Lake since the 1940s. Stupak-Thrall II, 988 F.Supp. at 1059. Longstanding prior use is one indicator that a co-riparian (a term used by Michigan courts to cover littoral and riparian landowners) acts reasonably relative to others. Dumont v. Kellogg, 29 Mich. 420, 425 (1874). No doubt, Michigan could have regulated motorboat use on Crooked Lake during this time. See Mich. Comp. Laws § 324.80108. And it may even be possible that it could have banned motorboats, though at the risk of imposing a regulatory taking under the State or Federal Constitutions. See Difronzo v. Vill. of Port Sanilac, 166 Mich.App. 148, 419 N.W.2d 756, 758 (1988). But the key point is that it never did. All agree that Michigan law permits motorboat use on the northern bay of the lake, outside the Sylvania Wilderness. The best evidence of reasonable use under Michigan law is what Michigan law allows on this lake. To our knowledge, no co-riparian has challenged the Herrs’ (or anyone else’s) use of gas-powered motorboats on this part of Crooked Lake. No less significantly, the Forest Service long allowed motorboat use on all of the lake after it obtained this regulatory authority. And it still does with respect to one property owner. Until 2013, the Service not only allowed motorboat use, but it also facilitated such use by selling boating permits and allowing the public to use a loading dock on federal land. It never appealed the injunction in Stupalc-Thrall II, which means that one of the ten property owners on the lake (and her guests) currently may use motorboats on all of the lake. How odd to allow one property owner to operate motorboats on the lake, while trying to exclude the other nine. If motorboat use is objectively unreasonable for one, it is objectively unreasonable for all. That does not mean the Herrs have a right to use any size boat at any speed on any part of the lake, as the district court worried. The Herrs have a right .to reasonable use of the lake. That means a right to travel at reasonable speeds within the lake. But the Forest Service has not shown that it would be unreasonable under Michigan law to travel on 95% of the lake above a low-wake-zone speed. If you think otherwise, try being at one end of a three-mile lake with a five-mile-an-hour speed limit as an unexpected storm sets in. A pre-existing use, we suppose, may not invariably amount to a right in all settings. But Michigan law tells us that boating is typically one stick in the bundle of littoral and riparian rights. Only if boating on this lake would be unreasonable under state law could we say otherwise. The long history of pre-existing use confirms that it is not unreasonable to use a gas-powered motorboat at speeds above five miles per hour on Crooked Lake. The Forest Service tries to ground its authority to ban gas-powered motorboats in state law and the Wilderness Act itself. Neither source delivers. The Forest Service tells us that it can regulate littoral and riparian rights under the Property Clause to the same extent that state regulators can regulate them. Maybe; maybe not. But we need not decide. For the Michigan Wilderness Act does not grant the Forest Service a power coextensive with Congress’ plenary authority under the Property Clause. It instead delegates a power limited by existing rights—“subject to valid existing rights.” For that reason, any “police power” the Forest Service may have must respect-pre-existing property rights, not just the limits of state power. Unless or until the State permissibly says otherwise, littoral property rights include the right to reasonable use of the water’s surface for recreational motorboating. No matter how reasonable the Forest Service may think this regulation is, it has no power to nullify the Herrs’ pre-existing right under Michigan law to use the lake for recreational motorboating. That the Wilderness Act contemplates “desirable” regulation of pre-existing motorboat use ignores the fact that the Michigan Wilderness Act makes the Forest Service’s authority to enforce the Wilderness Act subject to independent limitations. Though the Michigan Wilderness Act provides that the Forest Service is to manage this area “in accordance” with the Wilderness Act, it also provides that such management is “[sjubject to valid existing rights.” Pub. L. No. 100-184, § 5, 101 Stat. 1274, 1275-76 (1987). That limitation remains controlling. All of this does not leave the Forest Service or the Herrs’ neighbors without options. Fellow riparians may enjoin unreasonable uses under state law through the state and federal courts. They may petition the State of Michigan to change the boating rules on the surface of Crooked Lake. Or they may pay the Herrs for an easement on their property, which would limit motorboat use in the same way the Gajewskis’ property became limited. Even the serenity of nature sometimes comes at a price. For these reasons, we reverse.

Herr v. United States Forest Service

DISSENT BERNICE B. DONALD, Circuit Judge, dissenting. I agree with the majority that the Herrs have valid existing rights to which any regulation by the Forest Service must be subservient. I agree also that the district court erroneously concluded that the Herrs’ rights were not “existing” because the Herrs purchased their land after the Forest Service passed Amendment No. 5. Where I disagree, however, is with the majority’s conclusion that a federal agency, in the same manner as a state, may not impose reasonable restrictions on littoral and riparian rights, when expressly authorized by Congress to do so. First, as the Supreme Court has held, “[t]he general government doubtless has a power over its own property analogous to the police power of the several states, and the extent to which it may go in the exercise of such power is measured by the exigencies of the particular case.” Kleppe v. New Mexico, 426 U.S. 529, 540, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976) (citing Camfield v. United States, 167 U.S. 518, 525, 17 S.Ct. 864, 42 L.Ed. 260 (1897)). This also “includes the power to regulate in a manner affecting non-federal property.” Burlison v. United States, 538 F.3d 419, 432 (6th Cir. 2008). As such, the power of Congress to regulate under the Property Clause “may have some effect on private lands not otherwise under federal control.” Id. (quoting Kleppe, 426 U.S. at 546, 96 S.Ct. 2285). Second, as even the majority notes, Congress has authorized the Forest Service to regulate the Sylvania Wilderness. This authority, “subject to valid existing rights,” is coextensive with Congress’ own authority under the Property Clause when the Forest Service acts to preserve the wilderness character of the Sylvania Wilderness. It thus follows that the Forest Service possesses a power that is “analogous to the police power of the several states,” and where the Forest Service does not exceed the scope of the permissible police power of the state, it may exercise this power. It is important then that we first examine the scope of the state’s power to regulate littoral and riparian rights. In Michigan, “[t]he rights associated with riparian ownership generally include ... the right to a reasonable use of the water for general purposes such as boating, domestic use, etc.” Tennant v. Recreation Dev. Corp., 72 Mich.App. 183, 249 N.W.2d 348, 349 (1976). These rights, however, are not without limitation. To protect the public safety, Michigan permits regulation of the operation of vessels on the waters of the state. Mich. Comp. Laws § 324.80108. To this end, Michigan courts have upheld restrictions from local governments as they relate to the riparian and littoral rights of citizens within their jurisdictions. See, e.g., Square Lake Hills Condominium Ass’n v. Bloomfield Twp., 437 Mich. 310, 471 N.W.2d 321, 326 (1991) (permitting Bloomfield Township to regulate boat docking and launching on inland lakes under the township’s police power); Miller v. Fabius Twp. Bd., 366 Mich. 250, 114 N.W.2d 205, 209 (1962) (allowing time regulations on water siding). Recognizing that the state may impose such regulations, the majority nevertheless concludes that the Forest Service may not regulate Crooked Lake in this manner because Michigan has not imposed such restrictions itself. But Forest Service’s powers, while restricted, do not depend on state action. Put another way, state law determines the scope of the Forest Service’s authority to regulate the surface of Crooked Lake because Congress has placed the specific constraint of “subject to valid existing rights”; rights that are determined by state law. But state regulation is not a prerequisite to the Forest Service’s ability to regulate. The determining factor, rather, is whether the regulation is a proper exercise of the state’s police power. And, as previously mentioned, Michigan state law confirms that restrictions on kinds of vessels and speed of motorboats are permissible. The next question is the reasonableness of the restriction. “The reasonableness of an ordinance ... depends upon the particular facts of each case. The test for determining whether an ordinance is reasonable requires us to assess the existence of a rational relationship between the exercise of police power and the public health, safety, morals, or general welfare in a particular manner in a given case.” Square Lake Hills, 471 N.W.2d at 324 (citation omitted). As the district court noted, Amendment No. 5’s restrictions are rationally related to achieving the Michigan Wilderness Act’s goal of preserving the wilderness character of Sylvania. Also, these restrictions are certainly reasonable. Amendment No. 5 does not ban the use of all motorboats on the surface of Crooked Lake; rather, it merely restricts the use of gas-powered motorboats, the size of the motor, and the speed at which a boat may travel on ninety-five percent of the lake. The majority approaches the issue of reasonableness by looking at whether recreational boating constitutes reasonable use under Michigan law. I agree that the use of gas-powered motorboats is generally not unreasonable under Michigan law; but this alone is not dispositive of whether the Forest Service’s ban of such use on Crooked Lake is unreasonable. Neither is the fact that the Forest Service has previously allowed motorboat use on the entire surface of Crooked Lake. As the majority notes, a pre-existing use does not always amount to a right. Initially, what was reasonable in the past is not necessarily reasonable today. But more importantly, the Heirs’ right to engage in recreational mo-torboating under Michigan law, which does not necessarily equate to a right to use gas-powered motorboats, is not immune from reasonable future regulation. “Congress chose to ‘grandfather’ private rights in the ‘subject to valid existing rights’ phrase, but in doing so, it never intended that those rights be ossified against further regulation.” Stupak-Thrall v. United States, 89 F.3d 1269, 1271 (6th Cir. 1996) (memo) (Moore, J., concurring in order affirming district court opinion by divided en banc vote). Ultimately, I believe that Amendment No. '5 was squarely within the Forest Service’s authority to enact, and that the restrictions do not infringe on the Herrs’ “valid existing rights.” For these reasons, I would affirm the district court. I respectfully dissent.

High Point, LLLP v. National Park Service

ROSENBAUM, Circuit Judge: Although Otis Redding may have enjoyed wasting time by watching ships roll into the Dock of the Bay, if he were sitting on Cumberland Island’s Brick-Kiln Dock, he truly would be wasting his time, waiting in vain for ships that would never come. That’s because dynamic environmental forces at play on Georgia’s barrier islands have caused large amounts of sediment and siltation to render the waters around Brick-Kiln Dock increasingly shallow, making the dock inaccessible to most vessels. The Candler family, which uses the dock to access property located within the boundaries of Cumberland Island National Seashore, has sought to move or extend the dock to improve its accessibility. But the National Park Service, which manages the seashore, has refused to allow changes to the dock in order to protect the island’s wilderness character. So the family has sued, arguing that the deed by which the Candlers conveyed the island property to the government and reserved the right to continue to use the dock permits them to relocate the dock. Alternatively, the family contends that the Park Service’s denial of permission to relocate or extend the dock is arbitrary and capricious, in violation of the Administrative Procedure Act. After careful review and with the benefit of oral argument, we must conclude that “nothin’s gonna change” from the district court’s decision; since neither the deed nor federal law supports the Candlers’ position. 1. Background A. Cumberland Island and High Point Compound Cumberland Island is Georgia’s largest barrier island, located off the southeast coast of the state. The island consists of uplands, marshlands, and various creeks. It is bounded by Cumberland Sound and the Cumberland River to the west and the Atlantic Ocean to the east. Historically, certain families used the island as an isolated vacation retreat. Among them, the Carnegie family claimed ownership of most of the island’s uplands. The northernmost tract of land owned by the Carnegies was Tract 5N (also known as 5-N or N-5). In 1930, Charles Howard Candler, Sr.— eldest son of Coca-Cola magnate Asa Candler — purchased property on the northern end of Cumberland Island in an area that came to be known as High Point. Over time, the Candlers acquired approximately 1300 acres of property on the island, including the 38-acre parcel now described as the High Point Compound (the “Compound”). In 1958, the Candler family conveyed the property’s ownership to High Point, Inc., which was later succeeded by Appellant High Point, LLLP (“High Point”), a corporation made up of Candler’s deseen-' dants. To permit easier access to the Compound, the Carnegie family allowed the Candlers to build Brick-Kiln Dock (the “Dock”) in Tract 5N. The Dock, which extends from the uplands portion of Cumberland Island into the marshlands and, specifically, Hawkins Creek (a tributary of the Brickhill River), is roughly 3.5 miles from the Compound. See Appendix. Although the island has an airstrip, visitors to the Compound arrive primarily by boat. When traveling to the island, the Candler family departs by boat from nearby Jekyll Harbor Marina and traverses intracoastal sounds, creeks, and rivers on its way to the Dock. The distance between Jekyll Harbor and the Dock is approximately 11.8 miles, and the journey lasts for roughly 45 minutes. Upon arrival at the Dock, travel to the Compound takes 15-20 minutes by automobile over the island’s unpaved roads. Cumberland Island has other docks managed by the National Park Service (“Park Service”), including the public Plum Orchard Dock and Sea Camp Dock. And while High Point itself owns other docks on- Christmas Creek, known as Willow Dock and Cedar Dock, these do not provide deep-water access to the island. B. Designation as a National Seashore Beginning in 1970, the United States, through the National Park Foundation, began acquiring land on Cumberland Island with a view towards establishing a national park. On September 29, 1970, the Foundation acquired Tract 5N from the Carnegie family’s Cumberland Island Holding Company. The deed conveying Tract 5N reserved “an easement as long as [the Cumberland Island Holding Company] owns real property or an Estate for Years on Cumberland Island, Georgia, for its invitees, licensees, and assigns, to use the roads, dock, and airstrip.” In 1972, Congress established the Cumberland Island National Seashore. 16 U.S.C. §§ 459i — 459Í-9 (the “Seashore Act”). With respect to private property owners, the legislation authorized the Secretary of the Interior to acquire lands within the designated boundaries by purchase, donation, transfer, or exchange. 16 U.S.C. § 459Í-1. In negotiating for the properties, the Secretary could allow private land owners on the island to retain “a right of use and occupancy of the property for noncommercial residential purposes” for a term of 25 years or the life of the owner. 16 U.S.C. § 459i-3(a). The Seashore Act also required the island to be “permanently preserved in its primitive state,” with the exception of development for certain public recreation activities. 16 U.S.C. § 459i-5(b). Finally, as relevant here, the Seashore Act directed the Secretary to recommend to the President the suitability of the national seashore for designation as wilderness under the Wilderness Act of 1964, 16 U.S.C. § 1132. The Wilderness Act of 1964, in turn, establishes a system for preserving federal lands in their “primeval” and “undeveloped” state, “untrammeled by man.” 16 U.S.C. § 1131. The statute, which allows Congress to designate areas as wilderness on the recommendation of the President, 16 U.S.C. § 1132, requires wilderness areas to be administered “in such manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas, the preservation of their wilderness character, and for the gathering and dissemination of information regarding their use and enjoyment as wilderness.” 16 U.S.C. § 1131(a). C. Conveyance of High Point’s Property to the United States Since Cumberland Island’s designation as a national seashore, the United States has acquired title to a majority of the privately owned land on the island. With respect to High Point, negotiations began in the early 1970s and culminated years later in 1982, with High Point’s sale of and corresponding conveyance of fee simple title to its Cumberland Island property. In furtherance of this transaction, before the end of 1981, the parties executed an Option Agreement for the sale of High Point’s property subject to the terms and conditions of an attached Purchase and Sale Agreement. The Purchase and Sale Agreement specifically conditioned sale on the reservation of a right, free from interference, “to continue to use the area presently known as the Brick-Kiln Dock located on Hawkins Creek in tract N-5 Cumberland Island, Georgia.” Beyond reserving use of the Brick-Kiln Dock, the Purchase and Sale Agreement also reserved to High Point rights to use the Christmas Creek docks, the airstrip, and the island’s roads as well as “easements and rights of access, ingress and egress by water and air as presently existing and used by [High Point].” The. duration of the reserved rights extended to the death of the last surviving named shareholder of the corporation, who is currently roughly 35 years old. In anticipation of the acquisition, the Park Service commissioned an appraisal of the property. The appraiser concluded that “use of [the Dock], airstrip, main road and beach road, as well as exclusive use of the beach cabana, are necessary to the full use and enjoyment of the property as it exists today.” Without the airstrip or Dock, the appraiser determined, restoring satisfactory all-weather access to High Point’s property would require “an extensive investment.” On January 20, 1982, High Point executed a warranty deed conveying its property to the United States. The deed warranted title to all of the property above the high-water mark “but expresse[d] no warranty as to the title to those lands lying between the high and low water marks in the above-described lands, (including all marsh, beach, and tidal branches, rivers, streams, oceans, sounds, and other bodies of water), and of title to the land underlying said bodies of water.” Among other rights, the deed reserved rights to the High Point shareholders for the remainder of their lives for use “of the area presently known as Brick-Kiln Dock.” And, while the deed gave High Point four years to rebuild and modernize various dwellings located on the Compound without interference from the Park Service, after that time, High Point was prohibited from materially changing the character of any existing improvements or structures, performing new construction, or altering the topography of the land without the approval of the Park Service. Nevertheless, the deed allowed High Point to conduct “normal maintenance” and repairs on the property’s existing improvements and structures. Of note, the deed also contained language memorializing the parties’ intent in High Point’s conveyance of the property and its reservation of rights of use. That language described the intent as being to preserve the area “in its natural state as a part of Cumberland Island National Seashore.” D. Designation as Wilderness As we have noted, the Seashore Act instructed the President to evaluate whether areas of Cumberland Island National Seashore should be designated as wilderness under the Wilderness Act. 16 U.S.C. § 459i-8. In accordance with this provision, on the Park Service’s recommendation, Congress designated 8,840 acres of Cumberland as wilderness under the Wilderness Act and 11,718 acres as “potential wilderness” until such time as prohibited uses of that land ceased. Act of Sept. 8, 1982, Pub. L. No. 97-250, § 2(a), 96 Stat. 709 (“Designating Act”). The Dock falls into both categories: while the upland section of Tract 5N on which part of the Dock sits was designated as wilderness; the marshlands under the remainder of the Dock were designated as potential wilderness. The Designating Act provided that Cumberland Island wilderness areas be managed under the provisions of the Wilderness Act- “[sjubject to valid existing rights.” Id. § 2(c). E. The Current Situation At some point before 2008, a portion of the land separating Hawkins Creek from the Brickhill River breached upstream of the Dock. As a result, tidal flows that had once swept sediment away from the Dock into the creek and river no longer do so, resulting in increased siltation around the Dock. So the downstream portion of the creek near the Dock has become too shallow for passenger vessels to navigate except during a period of about four hours during high tide. High Point maintains that as siltation continues, the Dock will become completely unusable as a deep-water dock. For this reason, on June 16, 2008, High Point asked the Park Service for permission to move the Dock approximately 50 to 100 yards north of its current position to another bend in Hawkins Creek. The Park Service rejected the request, concluding that the deed did not give High Point a right to move or expand the Dock, and in the absence of such a right, the Wilderness Act prohibited relocating the Dock. Over the next four years, the parties continued negotiating, with High Point proposing two alternatives — moving the Dock 900 feet south and directly on to the Brickhill River or extending the existing Dock to the southwest over Hawkins Creek and marshland and directly into the Brickhill River. At one point, the Park Service suggested that High Point could use the public Plum Orchard dock. High Point retained environmental consultants to evaluate various other proposed solutions, but the consultant’s report rejected all potential options as infeasible except the closing of the breach and the three solutions advanced by High Point. With respect to the Plum Orchard dock option, the report deemed it inconvenient because Plum Orchard’s location would increase the total travel time from Jekyll Harbor to the Compound to one-and-one-half or two hours, increase the distance the Candler family would have to travel over “bumpy roads” on the island, and force the Candler family to compete with members of the public for dock space. Although the Park Service continued to reject High Point’s requests to implement one of the relocation or extension options, in 2011, it asked High Point to provide extrinsic evidence regarding the parties’ intentions regarding the Dock and access to the island at the time they executed the deed. After reviewing this information, the Park Service agreed that the Dock, as currently situated, was essential to High Point and that siltation was a kind of “deterioration by the elements” that could permit repair of the dock in its current location. But the Park Service held firm to its position that nothing in the reserved-rights language of the deed allowed for reconstruction or relocation of the Dock. For this reason, the Park Service advised High Point that dredging Hawkins Creek, repairing the breach, or using Plum Orchard dock were the only permissible options. The Park Service later withdrew its approval of closing the breach since that option would entail construction in a potential wilderness area. As for the dredging option, the Park Service later clarified that although the agency would not oppose dredging, it would be obliged to present to Georgia state officials “objective comments” on the environmental impacts of dredging. But High Point itself had separately concluded that the dredging option would be too expensive, anyway, as it would require re-dredging whenever the siltation levels built up, which could be as often as once a year. In a February 2012 letter, High Point asked the Park Service to reconsider its decision. First, it sought to demonstrate that the monetary and environmental costs of dredging or using the Plum Orchard dock would be far greater than the impact of permitting High Point to relocate or extend the Dock. And second, High Point argued that the Park Service had no authority to regulate High Point’s activities in the marshlands, anyway, because, according to High Point, the state of Georgia — not the United States — holds title to the marshlands. The Park Service declined to reconsider its decision. With respect to the costs of not permitting High Point to relocate or extend the Dock, the Park Service reaffirmed its view that the deed language simply did not permit the relocation or extension of the Dock. And in the absence of deed language allowing for such construction, the Park Service explained, the Wilderness Act effectively tied the Park Service’s hands, so the Park Service could not authorize the relocation or extension of the Dock. The letter also rejected High Point’s contentions that it could not use Plum Orchard as an alternative, noting that the dock is not within a wilderness area and opining that the extended travel time, while not convenient, is not impracticable. As for High Point’s contention that Georgia, not the United States, owns the marshlands, the Park Service later responded that under 36 C.F.R. § 1.2(a)(3), ownership of the marshlands makes no difference to the Park Service’s statutory obligation and authority to prohibit dock construction over waters and marshlands that are within the wilderness areas of Cumberland Island National Seashore. Since the Dock falls within the bounds of the National Seashore and the marshlands over which High Point seeks to extend or relocate the Dock are within the reach of waters subject to the Park Service’s jurisdiction, the Park Service reasoned, actual ownership of the marshlands could not affect the Park Service’s authority. F. High Point’s Lawsuit When negotiations with the Park Service failed to bear fruit, High Point filed suit on May 10, 2012, in the Southern District of Georgia, against the Park Service and several of its officials. The first count of High Point’s suit seeks judicial review of the Park Service’s denial of High Point’s request as' a final agency action under the Administrative Procedure Act (“APA”). The second count requests a declaratory judgment that the Park Service has both statutory authority and a legal obligation to approve construction or relocation of the Dock. Both parties filed cross-motions for summary judgment. On February 27, 2015, the district court granted the Park Service’s motion and denied High Point’s motion. First, the district court concluded that the deeds unambiguously prohibited High Point from moving or extending the Dock without the Park Service’s permission. Because it found that the deeds did not allow for relocation of the Dock, the district court then considered whether the Park Service was authorized to permit relocation under federal law. The district court agreed with the Park Service, concluding that the Wilderness Act and this Circuit’s precedents categorically barred the Park Service from allowing construction in wilderness areas. In reaching this conclusion, the district court considered and rejected High Point’s contention that the Park Service had no authority over the marshlands. Instead, the district court determined that regardless of ownership, the Park Service had authority to regulate nonfederal lands within the boundaries of a national park. High Point now appeals the district court’s judgment, arguing that the deed unambiguously reserves to High Point a right to relocate the Dock. Alternatively, High Point urges, the deed is ambiguous, and extrinsic evidence demonstrates that the parties intended to reserve to High Point such a right. In light of this intention, High Point contends, the Park Service is both authorized and obligated to approve relocation or extension of the Dock. II. Standards of Review We review de novo a district court’s grant of summary judgment in an APA case, employing the same standards as the district court. Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009). Summary judgment “is proper if, when viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 911 (11th Cir. 2007). As for High Point’s APA claim, courts may set aside a final agency decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(A), (C); Miccosukee Tribe, 566 F.3d at 1264. A decision is arbitrary and capricious when, among other flaws, “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, [or] offered an explanation for its decision that runs counter to the evidence before the agency.” Miccosukee Tribe, 566 F.3d at 1264 (quoting Ala.-Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250, 1254 (11th Cir. 2007)). III. Discussion A. High Point has no reserved right to move or extend the Dock At the outset, we note that both parties agree — and we do, too — that we interpret the deed language under the contract law of Georgia. See Hardman v. Dahlonega-Lumpkin Cty. Chamber of Commerce, 238 Ga. 551, 233 S.E.2d 753, 755 (1977). Under Georgia law, courts determine in the first instance whether deed language is clear and unambiguous. Flanders v. Cook, 167 Ga. 66, 144 S.E. 903, 904 (1928); see Begner v. United States, 428 F.3d 998, 1005 (11th Cir. 2005) (quoting Eudy v. Universal Wrestling Corp., 272 Ga.App. 142, 611 S.E.2d 770, 773 (2005)). Only if a court finds an ambiguity may it attempt to resolve the ambiguity by applying Georgia’s rules of construction, such as evaluating extrinsic evidence. See Eudy, 611 S.E.2d at 773. High Point contends that two parts of the deed conveying its property to the United States unambiguously reserve to High Point a right to unilaterally relocate the Dock to maintain deep-water access to Cumberland Island. First, High Point relies on the deed’s reservation to High Point’s shareholders of use “of the area presently known as Brick-Kiln Dock located on Hawkins Creek in Tract N-5.” Second, High Point invokes the deed’s “Preservation” clause to support its contention that the parties contemplated unilateral relocation or reconstruction of the Dock. We are not persuaded. 1. The Brick-Kiln Dock Reservation High Point’s argument that the Brick-Kiln Dock reservation authorizes relocation and expansion boils down to the idea that the word “area” in the reservation of use of “the area presently known as Brick-Kiln Dock located on Hawkins Creek in Tract N-5” must be broadly construed to support a reservation of use of the entire N-5 tract for deep-water access. That construction is simply not sustainable. First, it ignores the explicit limiting impact that the phrase “presently known as Brick-Kiln Dock” has on its right of use. Only Brick-Kiln Dock is known as Brick-Kiln Dock, not any other part of Tract N-5. Second, High Point’s interpretation of this language does not account for the significant fact that the deed contains no mention of preserving deep-water access. Had the parties intended to reserve High Point’s deep-water access in general — as opposed to its use of the Dock — the deed could have easily said so. A straightforward reading of the deed language demands the conclusion that High Point reserved only a right to use— not to move or to extend — the Dock as it was “presently known” at the time of the conveyance. 2. The “Preservation” Clause High Point similarly misplaces its reliance on the “Preservation” clause. That clause provides that “[a]ny building or structure ... deteriorated by the elements ... may be maintained, repaired, renovated, remodeled, or reconstructed so long as the basic character of the building or structure is not materially altered.” Accepting for the present that siltation in Hawkins Creek qualifies as “deterioration by the elements,” High Point does not explain how relocating or extending the Dock is not a material alteration of its basic character. We agree with the district court: High Point’s argument that the “basic character” of a structure encompasses just the types of materials used and an object’s general purpose, but not its design or location, “is strained.” Indeed, even High Point concedes that a structure’s basic character can depend in some instances on “how the structure fit[s] within its environment.” Given the wilderness-preservation goals Congress had in mind for the Cumberland Island National Seashore, we view the Dock’s footprint and location in the natural environment as a rather significant aspect of its “basic character.” Nor does High Point’s reliance Calhoun, GA NG, LLC v. Century Bank of Georgia, 320 Ga.App. 472, 740 S.E.2d 210 (2013), provide precedent for authorizing what the deed’s language does not. High Point invokes Calhoun for the proposition that easements can and must be relocated if the relevant contract language contemplates such relocation, even if, as is the case here, the relocation of an easement is not specifically mentioned in the deed. But Calhoun does no more than require compbance with the parties’ agreement as expressed in the contract at issue. In Calhoun, the holder of Tract 2 granted an easement to the holder of Tract 1 to use “sidewalks, entrances, drives, lanes, service drives and parking areas, which are now or may hereafter from time to time be constructed and used for pedestrian and vehicular traffic.” Calhoun, 740 S.E.2d at 213 (emphasis omitted). The conveyance also allowed each tract owner “the right to expand, alter, modify all or part of the buildings now or hereafter constructed on said tracts, or develop said tracts in any manner they see fit.” Id. (emphasis omitted). At the time of the suit, a bank acquired Tract 2, the servient estate, and Calhoun owned Tract 1, the dominant estate. Id. at 211. The bank wanted to build a convenience store and gas station that would have altered or eliminated some existing easement areas used by Calhoun on Tract 2. Id. at 212. The Georgia appellate court upheld a grant of summary judgment in the bank’s favor. After first noting that under Georgia law, both estates must consent to alteration of a fixed easement, the court also observed that a “servient estate has the right to relocate an easement if the instrument creating the easement so provides.” Id. (quoting SunTrust Bank v. Fletcher, 248 Ga.App. 729, 548 S.E.2d 630, 633 (2001)). Although the conveyance did not expressly discuss relocation of existing easements, the court held that the parties’ language contemplated that the sidewalks and parking areas on Tract 2 might change over time and that the broad reservation to develop the tracts in any manner permitted the bank’s development so long as Calhoun maintained its easement over any new such areas established on Tract 2. Id. at 213-14. High Point likens the bank’s removal of current parking areas to the siltation of the Dock in that, in both cases, events have caused use of the existing easement to become impractical. In High Point’s view, Calhoun establishes that this type of impracticality requires relocation of a current easement, even when the language of the conveyance does not specifically address relocation of easements. But rather than helping High Point, Calhoun merely affirms that the language of the parties’ contract controls. The Georgia court did not rest its analysis in Calhoun on impracticality. Instead, it construed the broad language of the conveyance to demonstrate the parties’ contemplation and intent that existing easements would require relocation over time. Indeed, as we understand the contract at issue in Calhoun, the language in granting “the right to expand, alter, modify all or part of the buildings now or hereafter constructed, or develop said tracts in any manner they see fit” effectively would have been meaningless if the servient estate could not also relocate easements affected by exercise of the ser-vient estate’s right to expand, alter, modify, and develop. And the contract’s use of the word “or” in the phrase “or may hereafter ... be constructed,” as opposed to use of the term “and” in that phrase, contemplated that easements that existed at the time that the contract was executed might not exist in their then-current form later. But the deed here is far more restrictive in terms of what it permits High Point to do on the property. It expressly constrains High Point’s use to the existing dock. It also requires the Park Service to approve significant alterations of the property’s structures. And it unmistakably reflects the parties’ intent that the Dock (and other property) will be used “with the knowledge that the property is intended by the United States Congress to be preserved in its natural state.” Unlike in Calhoun, the deed here contains no language that implies that the parties agreed to permit High Point’s unilateral relocation or extension of the Dock. And absent language expressly or impliedly permitting movement of a fixed easement, Georgia law precludes unilateral movement. See Herren v. Pettengill, 273 Ga. 122, 538 S.E.2d 735, 736-37 (2000). In short, under the plain language of the deed, nothing allows High Point to relocate or extend the Dock. We therefore affirm the district court’s determination that High Point has no reserved right to unilaterally relocate or extend the Dock. B. The Park Service’s denial of permission to relocate or extend the Dock was not arbitrary or capricious and did not exceed its authority Our conclusion that High Point has no unilateral right to move or extend the Dock does not end our inquiry. The deed allows High Point to seek permission from the Park Service for new construction or alterations, and High Point maintains that the Park Service’s denial of that permission was arbitrary and capricious and exceeded the Park Service’s authority. Specifically, High Point claims that the Park Service denied its request based on a misapplication of the Wilderness Act and a misapprehension of the Park Service’s regulatory authority over tidal marshlands. We disagree. 1. The Wilderness Act forecloses relocation of the Dock Congress enacted the Wilderness Act “to secure for the American people of present and future generations the benefits of an enduring resource of wilderness.” 16 U.S.C. § 1131(a). To meet this purpose, the Act allows for the designation of wilderness areas that “shall be administered for the use and enjoyment of the American people in such manner as will leave [the lands] unimpaired for future use and enjoyment as wilderness,” and provides a framework for the protection and preservation of designated areas. Id. The Act further instructs that the agency assigned to manage such protected areas shall manage the property in its charge in a manner designed to preserve the “wilderness character” of the area: Except as otherwise provided in this chapter, each agency administering any area designated as wilderness shall be responsible for preserving the wilderness character of-the area and shall so administer such area for such other purposes for which it may have been established as also to preserve its wilderness character. Except as otherwise provided in this chapter, wilderness areas shall be devoted to the public purposes of recreational, scenic, scientific, educational, conservation, and historical use. 16 U.S.C. § 1133(b) (emphasis added). In furtherance of these goals, the statute severely restricts activities and structures in wilderness areas: Except as specifically provided for in this chapter, and subject to existing private rights, there shall be no commercial enterprise and no permanent road within any wilderness area designated by this chapter and, except as necessary to meet minimum requirements for the administration of the area for the purpose of this chapter (including measures required in emergencies involving the health and safety of persons within the area), there shall be no temporary road, no use of motor vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of mechanical transport, and no structure or installation within any such area. 16 U.S.C. § 1133(c) (emphasis added). Indeed, the Wilderness Act categorically prohibits structures in wilderness areas subject to two exceptions: a private-rights exception and an administrative-needs exception. Id.; see Wilderness Watch v. Mainella, 375 F.3d 1085, 1093 (11th Cir. 2004). In Mainella — a case that also involved Cumberland Island — a panel of this Court construed § 1133(c)’s prohibition on motor-vehicle use in light of the administrative-needs exception. First, the panel determined that Congress had spoken clearly and unambiguously in the Wilderness Act, obviating any need for deference to the Park Service’s construction of the statute. See 375 F.3d at 1091 & n.7. The panel then observed that the clear purpose of the Act was the preservation of untrammeled natural areas. Id. at 1091-92. In rejecting the Park Service’s practice of allowing of tourists to “piggyback” on official vehicle trips to Cumberland’s historical sites, the Court held that § 1133(c)’s prohibitions were “categorical” “except ‘as necessary’ ” for minimum administration of the wilderness area, and in no sense could a van filled with tourists “be construed as ‘necessary’ to meet the ‘minimum requirements’ for administering the area ‘for the purpose of [the Wilderness Act].’ ” Id. at 1092-93. High Point relies on the private-rights exception here rather than the administrative-needs exception discussed in Mainella, but the distinction is immaterial. Given the stringent, preservation-oriented purposes of the Wilderness Act, this Court has found the prohibitions in § 1133(c) to be categorical and subject to only very limited, narrow exceptions. Mainella, 375 F.3d at 1092-93. High Point cannot show that the narrow private-rights exception to the Wilderness Act’s strong preservation purposes applies any more than the Park Service could show in Mainella that the administrative-needs exception relieved the Park Service of its obligations under the Wilderness Act. To overcome the Wilderness Act’s clear purposes, High Point contends that the private-rights exception not only permits but in fact obligates the Park Service to approve relocation or extension of the Dock. It reasons as follows: because, in High Point’s view, High Point has retained a private right of deep-water access to Cumberland Island, the Park Service must accommodate construction that advances that allegedly existing private right. This argument is based entirely on a faulty premise — that High Point retained a private right of deep-water access to Cumberland Island. But, in fact, as we have explained, High Point reserved no such right in the deed conveying its property. So High Point simply has no “existing private rights” that fall within the exception to § 1133(c)’s categorical prohibition on the construction of structures in wilderness areas. The law is clear: with the exception of the existing Dock (in which High Point does have an “existing private right[]”), “there shall be ... no structure or installation” within any wilderness area. The Wilderness Act’s clear prohibitions relieved the Park Service of any discretion to grant High Point’s requests to relocate or extend the Dock. Because the Park Service’s denial of High Point’s requests rests on a correct view of the Wilderness Act, the district court did not err in concluding that the Park Service’s decision was neither arbitrary nor capricious. £ The Park Service is authorized to rep-úlate the marshlands In an attempt to avoid the barriers of the Park Service and the Wilderness Act, High Point claims that it can achieve its objectives solely by extending the marshlands portion of the Dock without altering the wilderness-bound upland part of the Dock in any manner. In High Point’s view, even if the Wilderness Act prohibits construction in the uplands portion of Cumberland Island that was designated as “wilderness,” the Park Service lacks authority to deny any modification or extensions of that portion of the Dock extending over the marshlands that were designated as “potential wilderness.” As High Point’s argument goes, the Park Service has no regulatory authority over the marshlands because the State of Georgia— rather than the federal government — holds title to them, and Congress intended that the Park Service exercise authority over only the federally owned lands at Cumberland. The law does not support High Point’s claim. Regardless of who actually owns the marshlands, federal law unambiguously displays congressional intent to empower the Park Service to regulate the marshlands designated as potential wilderness on Cumberland Island. In particular, the Park Service’s establishing law and the Seashore Act make this fact abundantly clear. The Park Service’s establishing law, in effect at the time that High Point made its requests, extended the Park Service’s regulatory power to federal “areas”; it did not mention federal ownership: The service thus established shall promote and regulate the use of the Federal areas known as national parks, monuments, and reservations hereinafter specified, ... by such means and measures as conform to the fundamental purpose of the said parks, monuments, and reservations, which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations. 16 U.S.C. § 1 (emphasis added), repealed by Act of Dec. 19, 2014, Pub. L. No. 113-287, § 7, 128 Stat. 3094, 3272-73; see also 16 U.S.C. § 3 (repealed 2014) (providing that the Secretary of the Interior “shall make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks, monuments, and reservations under the jurisdiction of the National Park Service”). As several of our sister circuits have recognized, this regulatory authority extends to non-federally owned land encompassed within national park boundaries. See, e.g., Dunn-McCampbell Royalty Interest, Inc. v. Nat’l Park Serv., 630 F.3d 431, 442 (5th Cir. 2011); United States v. Stephenson, 29 F.3d 162, 164 (4th Cir. 1994) (“The primary inquiry in determining the applicability of Park laws to a given area must therefore be whether that area is within the statutory boundaries of the Park, not whether [the Park Service] holds title to the land in question.”); Free Enter. Canoe Renters Ass’n of Mo. v. Watt, 711 F.2d 852, 856 (8th Cir. 1983); see also United States v. Brown, 552 F.2d 817, 821-22 (8th Cir. 1977) (holding that the broad authority granted to Congress by the Constitution’s Property Clause authorizes the federal government “to regulate activities on non-federal public waters in order to protect wildlife and visitors on [federal] lands”). In addition to the Park Service’s general regulatory authority, the Seashore Act gives the Park Service regulatory authority over non-federally owned lands within the bounds of the Cumberland Island National Seashore. In establishing the Cumberland Island National Seashore, the Seashore Act placed the marshlands within the boundaries of the federal park. It further authorized the Park Service to “administer! ], protect!], and develop[]” the seashore in accordance with the Park Service’s establishing statutes. 16 U.S.C. § 459i-5(a). And it empowered the Park Service to use any other available statutory authority for conservation and management of the island’s natural resources, instructing that all land within the park be managed with an eye towards preserving non-recreational areas in their “primitive state.” Id.; 16 U.S.C: § 459i-5(b). Besides the fact that the marshlands fall within the boundaries of the Cumberland Island National Seashore, the bill designating Cumberland Island as wilderness identified the marshlands under the Dock as “potential wilderness.” See Act of Sept. 8, 1982, Pub. L. No. 97-250, § 2(a), 96 Stat. 709. And the House and Senate reports accompanying the designating bill expressed Congress’s desire that “[t]o the extent it can legally do so, the National Park Service is expected to manage the potential wilderness areas as wilderness, according to the provisions of the Wilderness Act of 1964.” H.R. Rep. No. 97-383, at 4-5; S. Rep. No. 97-531, at 3. The reports expressed this intent even though they acknowledged that the State of Georgia- — ■ and not the United States — held title to the intertidal marshlands designated as potential wilderness. See H.R. Rep. No. 97-383 at 4, 6; S. Rep. No. 97-531, at 3, 4-5. Pursuant to its authority under these statutes, the Secretary of the Interior has promulgated regulations governing the national park system. Those regulations apply to, among other things, “submerged lands, tidelands, [and] lowlands” within national parks, regardless of the ownership of such areas: Waters subject to the jurisdiction of the United States located within the boundaries of the National Park System, including navigable waters and areas within their ordinary reach (up to the mean high water line in places subject to the ebb and flow of the tide and up to the ordinary high water mark in other places) and without regard to the ownership of submerged lands, tidelands, or lowlands[.\ 36 C.F.R. § 1.2(a)(3) (emphasis added). As relevant here, the Park Service regulations prohibit private parties from “[e]on-structing or attempting to construct a ... boat' dock ... upon[,] across, over, through, or under any park” without permission. 36 C.F.R. § 5.7. In addition, as a matter of policy, the Park Service manages potential wilderness areas on Cumberland Island as wilderness to the extent possible. See Mainella, 375 F.3d at 1088 n.2. The upshot of this litany of statutes and regulations is that, contrary to High Point’s assertions and characterizations, Congress clearly intended for the Park Service to exercise protective authority over those tidal marshlands within the boundaries of Cumberland Island National Seashore that have been designated as potential wilderness, including those under the Dock, with full recognition that the marshlands are not owned by the United States. So even accepting that High Point can parse the Dock into uplands and marshlands parts and extend the latter without impacting the former, the Park Service was properly empowered — and indeed obligated — to deny High Point’s request to do so based on its authority and responsibility to protect the marshlands within Cumberland Island National Seashore as wilderness. IV. Conclusion For these reasons, we AFFIRM the judgment of the district court. APPENDIX . Steve Cropper & Otis Redding, (Sittin' On) The Dock of the Bay, on The Dock of the Bay (Volt/Atco 1968). Redding tragically died in a plane crash in December 1967, just two. days after he finished recording "(Sittin’ On) The Dock of the Bay," so the song was released posthumously on January 8, 1968. Marc Myers,' Then I Watch 'Em Roll Away Again, Wall St. J. (Jan. 3, 2013 6:20 PM), http:// www.wsi .com/articles/SB 10001424127 887323320404578213633398825300. It later won the 1968 Grammy Awards for the Best Rhythm & Blues Male Vocal Performance and the Best Rhythm & Blues Song. RockPo-plnfo Song Facts: (Sittin’ On) The Dock of the Bay, RockPopInfo, http://www.rockpopinfo. com/songs/sittin-on-the-dock-of-the-bay-2/ song-facts (last visited Aug. 2, 2016). . Cropper & Redding, supra note 1. . In this opinion, the term "uplands” refers to those generally dry areas of Cumberland Island above the high-tide water line. . The term "marshlands” includes those low-lying grassy areas that are regularly flooded by the tides. . The parties agreed to convey the land through the non-profit Trust for Public Land ("TPL”). The use of TPL as an intermediary has no bearing on the issues in this appeal. . The deed specified the following reservation: SUBJECT to the reservation of use by High Point, Inc., and its shareholders, of the area presently known as Brick-Kiln Dock located on Hawkins Creek in Tract N-5 Cumberland Island, Georgia, free from unreasonable interference by GRANTEE, its successors and assigns, with such use, nor shall GRANTEE, its successors and assigns, be responsible for maintenance, repair, or any liability for its use[.] . The deed’s "Preservation” clause provides, After the expiration of such period of four (4) years from the date of this conveyance, High Point, Inc., and its shareholders, shall not add to nor materially alter the character of existing improvements or structures contained within the High Point Compound, other areas where High Point, Inc., and its shareholders, reserve easements and rights of use and occupancy nor perform any néw construction or change the topography of the land without first having obtained the permission in writing of the GRANTEE, its successors and assigns. Any building or structure damaged or destroyed by fire or other casualty or deteriorated by the elements, or wear and tear, may be maintained, repaired, renovated, remodeled, or reconstructed so long as the basic character of the building or structure is not materially altered, from that existing as of the date of expiration of such four (4) year period as specified above. .The deed’s "Maintenance” section provides, in relevant part, With respect to the High Point Compound and areas in which High Point, Inc., and its shareholders, reserve easements and rights of use and occupancy, High Point, Inc., and its shareholders, shall have the right to make normal maintenance and upkeep of the property, to make modern modifications to existing structures and outbuildings, to make repairs and reconstruction to comply with safety or other sanitation codes, to replace roofing or siding, to shore up structures threatened by subsidence of soil and to repair or replace utility lines.... . The "intent” provision of the deed states, Intent. The use of High Point Compound and use of the areas for which easements and rights of use and occupancy are reserved, shall be limited to non-commercial residential purposes with the knowledge that the property is intended by the United States Congress to be preserved in its natural state as a part of Cumberland Island National Seashore.... . Both parties agree that the Park Service’s denial of permission to relocate or replace the Dock represents a final agency decision under the APA. . While we do not rely on extrinsic evidence because the language of the deed is clear, we nonetheless note that both parties were well aware of the importance of deep-water access and the access risks posed by the dynamic environment of Cumberland’s marshlands. We are not at liberty to expand the parties' bargain. . For this reason, we do not reach High Point’s alternative argument that the language is ambiguous. But we nonetheless note that even High Point identifies no part of the deed’s language that it suggests is actually ambiguous regarding its alleged right to relocate the Dock. Under Georgia law, a contract ''is ambiguous if it contains a 'duplicity, indistinctness, an uncertainty of meaning or expression' that makes it susceptible to several reasonable interpretations.” Begner, 428 F.3d at 1005 (citing Holcim (US), Inc. v. AMDG, Inc., 265 Ga.App. 818, 596 S.E.2d 197, 200 (2004)). . The 2014 law recodified the Park Service statutes as positive law in Title 54 of the United States Code. Although the new statute modified the prior statutes in many ways, the relevant language here remains materially unchanged. See 54 U.S.C. § 100101(a). In addition, the repealing legislation specified that any repealed sections were repealed "except with respect to ... proceedings that were begun before the date of enactment of this Act[.]” § 7, 128 Stat. at 3272-73. Because High Point’s lawsuit predates the recodification, the prior version's language applies to this case. . High Point has not contested the constitutional power of Congress to authorize federal regulation of non-federally owned park lands. Instead, High Point argues only that, in this case, Congress did not intend to authorize federal regulation of state-owned marshlands on Cumberland Island. . High Point asserts that § 1.2(a)(3) does not apply to the marshlands, based on the language of 36 C.F.R. § 1.2(b). That is simply incorrect. Section 1.2(b) provides, in relevant part, "The regulations contained in [Part 1] ... of this chapter do not apply on non-federally owned lands and waters ... located within National Park System boundaries, except as provided in paragraph (a).... ” (emphasis added). Put simply, § 1.2(b) unambiguously exempts § 1.2(a)(3) from its grasp.

National Parks Conservation Ass'n v. U.S. Department of the Interior

MOORE, District Judge: This case involves the addition of approximately 112,400 acres of land (“Addition Lands”) to the Big Cypress National Preserve in the State of Florida (“Original Preserve”). The Original Preserve was established by the Big Cypress National Preserve Act, 16 U.S.C. § 698f(a), and consists of over 574,000 acres. In 1988, Congress authorized the National Park Service (“NPS”) to acquire the Addition Lands, which are the subject of this suit. The Addition Lands contained approximately 244 miles of Off-Road Vehicle (“ORV”) trails that were open for public use prior to their acquisition by the NPS. In 1996, the NPS closed these trails for public use once it began official administration of the Addition Lands. Also, the NPS began the process of drafting a General Management Plan (“GMP”) for the Addition Lands, which included the possibility of ORV use on the existing trail network. As required by the Wilderness Act, 16 U.S.C. § 1131-1136, the NPS initially assessed the Addition Lands to determine their eligibility to be designated as wilderness under the act. Following a 2006 wilderness workshop, the NPS’s -initial eligibility assessment concluded that 111,601 acres could be designated as wilderness. While developing a GMP, the NPS was also in the process of formulating a framework for an ORV trail system in the Addition Lands. The process used available maps, aerial photographs, and global positioning system (“GPS”) equipment to map existing trails and other disturbed areas. In addition, NPS staff conducted field investigations to assess the sustainability of the existing ORV trails, which the NPS defined as “a travel surface that can support currently planned and future uses with minimal impact to the natural systems of the area.” Ultimately, the NPS determined that approximately 140 of the 244 miles of existing ORV trails met its definition of sustainable. Prior to NPS management of either the Original Preserve or the Addition Lands, ORV use was permitted in these areas and not restricted to designated trails. In May 2009, the NPS completed a draft GMP and environmental impact statement (“EIS”) entitled “Draft Management Plan/Wilderness Study/Off-Road Vehicle Management Plan/Environmental Impact Statement.” The 2009 draft, which closely tracked the plan implemented for the Original Preserve, included an ORV management plan that restricted ORV use in the Addition Lands to a designated trail system. The 2009 draft also designated approximately 93,426 acres of Addition Lands as primitive backcountry, in which ORV access would be prohibited. The ORV trails were limited to a 52,431-acre parcel designated as a backcountry recreation management zone. ORV use would be allowed in this zone, but restricted to approximately 140 miles of trail. During the public comment period, the NPS received almost 17,000 comments from agencies, Indian tribes, Florida state agencies, organizations, and individuals. These comments ranged from support for to argument against any ORV usage in the Addition Lands, as well as varying disagreement with the NPS’s assessment of those portions of the Addition Lands eligible for wilderness designation under the Wilderness Act. Some comments argued that the existing ORV trails, along with an area adjacent to the trails, were ineligible for wilderness designation based on the existence of human engineering that altered the natural landscape. In addition, the NPS received several comments contending that designating the area containing ORV trails as wilderness, which would temporarily prohibit ORV access, would severely restrict motorized access needed for emergency response, fire management, exotic species control, "wildlife management, hydrogeologic restoration, and other traditional activities. The NPS convened a second wilderness workshop in November 2009 to address the various concerns raised during the public comment period. During this second workshop, the NPS considered what wilderness-eligible Addition Lands it should recommend to the President for final designation as wilderness. As a result of the second workshop, the NPS reduced its initial recommendation that 85,862 acres of Addition Land receive the wilderness designation to only 48,130 acres. According to NPS Management Policy, it must preserve all lands identified as wilderness-eligible until Congress decides whether to actually designate that land as wilderness. However, the NPS Director has authority to waive this policy on a case-by-case basis. The Superintendent of Big Cypress sought such a waiver for certain lands determined to be wilderness-eligible in 2006, but not recommended for wilderness designation in 2009. In his request, the Superintendent explained that the waiver was requested for lands that “will require [] indefinite and continued active intervention in order to accomplish and maintain restoration goals related to exotic species of animals and plants as well as hydrology.” In his opinion, “[a] wilderness designation of these lands would seriously affect [the NPS’s] ability to take appropriate and necessary management action within these lands and over the long term.” Ultimately, the Director denied the requested waiver. Following the denial, the NPS convened a third workshop in February 2010 to assess the earlier public comments contending that certain portions of the Addition Lands, including those that formed the basis of the waiver request, were actually ineligible for wilderness designation. According to the workshop notes, the participants reviewed the previous criteria used to determine wilderness eligibility and revisited certain assumptions relied upon in the initial 2006 study. The participants agreed to use two assumptions as part of the 2010 workshop: first, the substantial imprint of human work would include roads, trails, or other areas created by man and requiring substantial human intervention for restoration; second, the viewpoint of a land manager, rather than a common visitor, would be used to determine whether the imprint of human work was substantially unnoticeable. Using these new parameters, the participants reviewed topographic maps, geographic information systems, and aerial photography, and relied on their own personal knowledge to reassess the earlier findings regarding wilderness eligibility. Based on the “lack of opportunities for solitude and the presence of human disturbance,” the ORV trails and a fé-mile buffer around the trails were determined to be ineligible for wilderness designation. The 2010 workshop resulted in a reduction in the amount of wilderness-eligible land from 111,601 acres to 71,260 acres. Based on the third workshop, the NPS completed its final wilderness eligibility assessment for the Addition Lands in April 2010. The final assessment carried forward the assumptions used during the 2010 workshop and determined that only 71,260 acres were eligible to be designated as wilderness, which did not include the.- former ORV trails and the fé-mile buffer. With respect to the buffer, the final assessment concluded that a y4-mile buffer in either direction from the trail centerline was appropriate “to accommodate environmental protection and safety considerations, such as for fire management, exotic/invasive plant and animal control, hunting and retrieval of game, and traditional uses including the gathering of native materials.” In October 2010, the NPS finalized its GMP and EIS for the Addition Lands. The GMP included a management plan for ORV use in the Addition Lands, which restricted such use to designated trails, provided for nightly and seasonal closures, and required ORV inspection and permitting. The GMP limited the number of ORV permits to 650 per year. Pursuant to the Endangered Species Act (“ESA”), 16 U.S.C. § 1531-1544, the NPS engaged in informal consultation with the U.S. Fish and Wildlife Service (“FWS”). concerning the potential impact of the Addition Lands GMP on the eastern indigo snake. The NPS conducted its own Biological Evaluation, concluding that their recommendation to allow ORV use in the Addition Lands was unlikely to adversely affect the eastern indigo snake. The FWS concurred with the NPS’s conclusion. The NPS also engaged in formal consultation with the FWS concerning the Florida panther. As a result, the FWS issued its Biological' Opinion in November 2010. In this opinion, the FWS determined that the GMP is unlikely to jeopardize the con-timed existence of the Florida panther. Addressing the planned ORV use, the FWS stated that while recreational ORV use has been associated with alterations in panther behavior, those alterations “have not been correlated with any change in reproductive success or survival.” The opinion authorized incidental loss of panthers in the form of habitat harassment, but outlined non-discretionary terms and conditions with which the NPS must comply, such as collection and monitoring of panther use of the Addition Lands. The opinion also required the NPS to again formally consult with the FWS should the level of incidental loss exceed expectations. Unhappy with the GMP, Appellant National Park Conservation Association (“NPCA”) filed suit in the Middle District of Florida. In its complaint, the NPCA contended that the GMP’s inclusion of ORV trails for the Addition Lands was arbitrary, capricious, and in violation of the Wilderness Act and Organic Act. Appellant Public Employees for Environmental Responsibility (“PEER”) filed a separate suit in the Middle District of Florida. Similarly, this complaint alleged that the decision to allow permitted ORV use in the Addition Lands was arbitrary, capricious, and contrary to the Wilderness Act, Organic Act, and ESA. The two cases were consolidated and referred to a Magistrate Judge. Following a de novo review of the Magistrate Judge’s Report and Recommendation, the District Court concluded that the NPS did not violate the Wilderness Act, finding that the 2010 reassessment of the wilderness eligibility determination was the result of reasoned decision-making rather than political manipulation. With respect to the /é-mile buffer, that court determined that the NPS’s rational for excluding those lands from wilderness eligibility was supported by the record. Also, the court found that the NPS did not violate the Organic Act by failing to promote conservation because the record supported the NPS’s conclusion that the existing ORV trail network retained the imprint of human engineering and would continue to handle ORV traffic from private property owners accessing their property. Finally, the District Court concluded that the NPS’s Biological Evaluation and the FWS’s Biological Opinion regarding the eastern indigo snake and Florida panther were supported by the record. The NPCA argues on appeal that the NPS’s wilderness assessment for the Addition Lands in Big Cypress National Park is inconsistent with the Wilderness Act such that it is arbitrary and capricious rather than the result of reasoned decision-making. In addition, the NPCA contends the NPS’s determination that implementation of the GMP would not impair the Addition Lands’ resources violated the Organic Act because the NPS improperly failed to consider the potential safety and other impacts of the proposed ORV trail system to existing visitor use. PEER raises the same arguments, but also maintains that both the NPS’s Biological Evaluation and the FWS’s Biological Opinion violated the ESA by failing to fully analyze the impacts of the ORV trail system on the eastern indigo snake and Florida panther. ANALYSIS I. Standard of Review Under the Administrative Procedures Act, 5 U.S.C. § 706(2), a court may only set aside an agency’s decision if it is determined to be arbitrary, capricious, an abuse of discretion, or contrary to law. A decision is arbitrary and capricious “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.” Defenders of Wildlife v. United States Dep’t of the Navy, 733 F.3d 1106, 1115 (11th Cir. 2013) (quoting Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009)). This standard is exceedingly deferential, prohibiting a court from substituting its judgment for the agency’s decision. Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008). Moreover, courts are required to defer to conclusions reached by an agency that are bases on its specialized expertise. City of Oxford v. FAA, 428 F.3d 1346, 1352 (11th Cir. 2005) (citing N. Buckhead Civic Ass’n v. Skinner, 903 F.2d 1533, 1538-39 (11th Cir. 1990)). However, the reviewing court must consider whether the record contains substantial evidence in support of an agency decision. 5 U.S.C. § 706(2)(E). Substantial evidence is “ ‘relevant evidence [that] a reasonable mind might accept as adequate to support a conclusion.’ ” Stone & Webster Constr., Inc. v. U.S. Dep’t of Labor, 684 F.3d 1127, 1133 (11th Cir. 2012) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)). This standard precludes a reviewing court from “deciding the facts anew, making credibility determinations, or re-weighing the evidence.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per cu-riam). The ability to find' adequate support in the record for a contrary conclusion is insufficient to overturn an agency’s factual conclusion. DeKalb Cty. v. U.S. Dep’t of Labor, 812 F.3d 1015, 1020 (11th Cir. 2016). II. Wilderness Act In this case, Appellants argue that the NPS’s adoption of a heightened standard for determining whether, under the Wilderness Act, the ORV trails were wilderness-eligible was arbitrary and capricious. Appellants contend that these standards are unprecedented and rely on factors not expressed in the Wilderness Act. In addition, Appellants advance the generally unsupported accusation that the reassessment of wilderness-eligible lands was the result of political pressure by the State of Florida and advocacy groups to permit extensive ORV use in the Addition Lands. In response, Appellees maintain that the NPS did not adopt a new interpretation of the Wilderness Act, but only made certain assumptions concerning how to assess the Addition Lands’ eligibility for wilderness designation. The Wilderness Act defines wilderness as “an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.” 16 U.S.C. § 1131(c). According to statute, wilderness is an “area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions.” Id. The only factors contained in the Wilderness Act state that eligible wilderness (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land. or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value. Id. It is difficult to see how the NPS ran afoul of these statutory directives. While the factors are objective, there are a myriad of parameters that can be used to as-' sess whether an area “generally appears to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable.” Id. While the 2006 workshop considered trails that required significant engineering as an example of a substantial human imprint, the 2010 workshop expressed it as trails “created by man and used significantly over time that would require substantial human intervention to restore.” To be fair, the language is not parallel between the two workshops. Giving the NPS due deference, however, it does not appear that these are two wholly differing standards. In short, they are not so diametrically opposed to permit the Court to conclude that the NPS drastically changed its criteria with the express purpose to omit the ORV trails from wilderness eligibility. Appellants’ argument concerning the point of view from which to determine wilderness eligibility also lacks merit. Appellants assume that the 2006 workshop assessed the condition of an area from the viewpoint of the common visitor, while the 2010 workshop used the viewpoint of a land manager. First, it is not particularly clear what viewpoint participants utilized in the 2006 workshop. The record is silent in that regard. Appellants only assume a common visitor viewpoint because the 2010 workshop specifically expressed it as a land manager viewpoint and not that of common visitor. Second, the language of the Wilderness Act does not express either a preference for or prohibition against the use of either viewpoint. Indeed, a reasonable application of the Wilderness Act’s factors could rely on either viewpoint. Third, it seems that the use of a land manager viewpoint would be more reasonable. The Wilderness Act expresses this factor as the impact of humans being substantially unnoticeable. It is reasonable to assume that training and experience is either necessary or preferred when assessing human impact on an area. Moreover, NPS policy requires a “managerial determination” as to eligibility, suggesting that a certain level of expertise should be employed when making eligibility determinations. In short, an area’s eligibility for wilderness designation is a highly technical judgment that is likely to be more ably performed by an informed individual with a trained eye, rather than by a mere common visitor. Contrary to Appellants’ argument, the NPS did not require that an area be pristine and untouched by humans to be found wilderness-eligible. The record shows that the NPS required the area to be free of any substantially noticeable human imprint, which is what is required under the Wilderness Act. Given the NPS’s technical expertise and the evidence in the record, this Court concludes the NPS’s determination that the former ORV trails, along with the jé-mile buffer, contains a substantially noticeable human imprint is the result of reasoned decision-making, and not arbitrary and capricious. Finally, there is no indication in the record that the NPS conducted the reassessment simply to appease the State of Florida and special interest groups. Agency decisions are entitled to a presumption of regularity. Citizens for Smart Growth v. Sec’y of Dep’t of Transp., 669 F.3d 1203, 1216 (11th Cir. 2012) (quoting Druid Hills Civic Ass’n, Inc. v. Fed. Highway Admin., 772 F.2d 700, 708 (11th Cir. 1985)). Absent evidence in the record, this Court is unwilling to ascribe some improper motive to the NPS’s decision to reassess the wilderness eligibility of the Addition Lands. Appellants point to no substantial evidence suggesting that the NPS caved to these groups. Rather, Appellants simply point to public comments that the ORV trails should be ineligible and the subsequent reassessment by the NPS. However, it is entirely expected that some of the 17,000 comments would contend that the area should not be designated as wilderness. The NPS is free to take to heart those comments and reassess its initial findings should it see fit. III. Organic Act Appellants argue that the NPS violated the Organic Act by failing to account for the impairment of visitor experience by the ORV trail system. Also, Appellants contend that the NPS violated the Organic Act by elevating recreational use above preservation. In response, Appellees maintain that the Organic Act does not include visitor experience as a factor that must be considered when creating a GMP. In addition, Appellees deny that the GMP for the Addition Lands impermissibly elevated recreation over conservation. In interpreting the Organic - Act’s non-impairment provision, NPS Management Policies provides that the fundamental purpose of the park system is to conserve park resources and values. The Management Policies further provide that “when there is a conflict between conserving resources and providing for enjoyment of them, conservation is to be predominant.” Agency decisions that fail to promote conservation over recreation run contrary to the express directives of Congress and cannot be upheld. The record in this case does not establish that the GMP improperly advanced recreational use over conservation of resources in the Addition Lands. The NPS analyzed the impact of the proposed ORV use on numerous conservation issues, and adopted measures to minimize and mitigate environmental harm. In addition, the GMP provides for adaptive management of Addition Lands by restricting ORV capacity as necessary to avoid negative impacts on the environment. The record more than supports Appellees’ claim that, relying on the NPS’s expertise in the field, the limited recreational use promoted by the GMP would not cause unacceptable environmental impairments or impacts. Moreover, the Addition Act permits the NPS to allow “traditional recreational opportunities,” 16 U.S.C. § 698m-2, so long as “that use will not cause impairment or unacceptable impacts” Based on the evidence in the record and giving due deference, there is no basis for concluding that the GMP’s inclusion of the ORV trail system is arbitrary and capricious. With respect to visitor experience, Ap-pellees are correct in their argument that visitor experience is not a park resource or value that must be considered when assessing an activity’s impact. In arriving at this conclusion, the NPS reasonably interpreted its Management Policies and Interim Guidance. The Interim Guidance does identify “appropriate opportunities to experience enjoyment of ... resources, to the extent that can be done without impairing them.” Giving the NPS appropriate deference, it is a reasonable interpretation that the Interim Guidance only requires visitors to have the opportunity to enjoy park resources, but does not mandate any specific level of enjoyment. Therefore, Appellants’ argument that the GMP imper-missibly failed to assess the impact of the ORV trails to visitor experience and non-ORV user safety lacks merit. IV. Endangered Species Act Appellant PEER argues that the NPS and FWS violated the ESA by failing to engage in formal consultation regarding the eastern indigo snake. Also,' Appellant PEER contends that the FWS failed to properly analyze the impacts of ORV use on the endangered Florida panther. In response, Appellees maintain that the NPS and FWS were not required to engage in formal consultation regarding the eastern indigo snake because they concluded that ORV use was not likely to adversely affect that species. With respect to the Florida panther, Appellees point to evidence in the record establishing that ORV use is unlikely to jeopardize the continued existence of the Florida panther, as well as the inclusion of a sufficient trigger in the Biological Opinion for the reinitiation of formal consultation based on incidental loss of habitat. The ESA requires federal agencies to “insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species” or destroy critical habitat. 16 U.S.C. § 1536(a)(2). To implement this directive, federal agencies must informally consult with the FWS where an action may affect a listed species or its critical habitat. 50 C.F.R. § 402.14(a). Should an agency and the FWS determine that an action is not likely to have an adverse effect, no further action is required. Id. § 402.13(a). If further formal consultation is required, the agency and the FWS prepare a Biological Opinion advising the agency whether a listed species is likely to be jeopardized, along with possible reasonable and prudent alternatives to the proposed action. Id. § 402.14(h)(3). The record in this case supports the NPS’s and FWS’s determination that formal consultation with respect to the eastern indigo snake was not required based on the lack of adverse effects posed by ORV use. Appellees correctly point to the NPS’s and FWS’s findings that while ORV use could alter eastern indigo snake behavior, any disruption would be negligible and not result in death or injury of any individual snakes. Because there is no likelihood of any measurable impact, formal consultation was not required. Affording the NPS’s and FWS’s conclusions due deference, their decision to forego formal consultation is not a violation of the ESA. Similarly, the record supports the NPS and FWS’s Biological Opinion that ORV use was unlikely to jeopardize the Florida panther’s continued existence. The Biological Opinion did state that the ORV trails, along with their íé-mile buffer, would result in 16,808 acres of suitable habitat being seasonally affected. However, the NPS and FWS relied on several scientific studies suggesting that Florida panthers are likely to seasonally avoid this habitat due to other causes, such as movement of prey, habitat composition, or hydrology. In any event, the Biological Opinion concluded that any migration away from ORV trails would have minor to no biological consequences. Deferring to the NPS and FWS’s judgment, those agencies appropriately analyzed the effects of ORV use on the existing Florida panther population. Finally, Appellant PEER incorrectly states that the Biological Opinion fails to include an appropriate trigger for reinitiation of formal consultation. This argument appears to rely on an amended version of C.F.R. § 402.14(i)(l)(i), which requires a clear standard for determining when the level of incidental loss has been exceeded. The regulation in place at the time the Biological Opinion was generated only required a statement specifying the impact of incidental loss. This prior version has been interpreted to permit the use of a trigger expressed in terms other than actual population loss where using actual population loss would be impractical. Miccosukee Tribe, 566 F.3d at 1275 (“We apply instead the rule that specific population data is required unless it is impractical.”). In this case, the NPS and FWS used habitat loss as the appropriate trigger based on the impracticality of maintaining an accurate population count of Florida panthers. Appellant PEER does not contest the impracticality of maintaining such a count. Because there is no evidence in the record to the contrary, the NPS and FWS’s use of habitat loss as the sufficient trigger is reasonable and their decision comports with the ESA. CONCLUSION In the final analysis, Appellants’ arguments can be reduced to a disagreement regarding the NPS’s and FWS’s ultimate conclusions. It is unsurprising that reasonable minds can differ regarding the interpretation of the copious amount of data upon which the NPS and FWS relied when making their decisions. However, it is clear to this Court that the record contains substantial evidence to support those conclusions. As a result, it is beyond the power of Appellants and this Court to second guess these agencies’ reasoned decision-making. Accordingly, the judgment of the district court is AFFIRMED.

Montana Wilderness Ass'n v. Connell

OPINION FISHER, Circuit Judge: Plaintiff environmental groups challenge the Bureau of Land Management’s (BLM) Resource Management Plan (RMP) for the Upper Missouri River Breaks National Monument (Monument). The district court granted summary judgment to the defendants on all claims. We affirm in part, reverse in part and remand. We hold that BLM complied with the Federal Land Policy and Management Act (FLPMA) and the National Environmental Policy Act (NEPA) but violated the National Historic Preservation Act (NHPA). BACKGROUND The Antiquities Act authorizes the President of the United States to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments.” 16 U.S.C. § 431. In accordance with this authority, President Clinton issued a Proclamation establishing the Upper Missouri River Breaks National Monument in 2001. See Proclamation No. 7398, 66 FecLReg. 7359 (Jan. 17, 2001). The Proclamation explains that: The Upper Missouri River Breaks National Monument contains a spectacular array of biological, geological, and historical objects of interest. From Fort Benton upstream into the Charles M. Russell National Wildlife Refuge, the monument spans 149 miles of the Upper Missouri River, the adjacent Breaks country, and portions of Arrow Creek, Antelope Creek, and the Judith River. The area has remained largely unchanged in the nearly 200 years since Meriwether Lewis and William Clark traveled through it on their epic journey. In 1976, the Congress designated the Missouri River segment and corridor in this area a National Wild and Scenic River (Public Law 94-486, 90 Stat. 2327). The monument also encompasses segments of the Lewis and Clark National Historic Trail, the Nez Perce National Historic Trail, and the Cow Creek Island Area of Critical Environmental Concern. Id. at 7359. The Proclamation declares that the Monument, which comprises approximately 375,000 acres of federal land, boasts the most viable elk herd in Montana; one of the premier big horn sheep herds in the continental United States; essential winter range for sage grouse; habitat for prairie dogs; one of the few remaining fully functioning cottonwood gallery forest ecosystems on the Northern Plains; large concentrations of antelope and mule deer; spawning habitat for the endangered pallid sturgeon; perching and nesting habitats for hawks, falcons and eagles; habitat for great blue heron, pelican and a wide variety of waterfowl; habitat for 48 fish species; archeological and historical sites, from teepee rings and remnants of historic trails to abandoned homesteads and lookout sites used by Meriwether Lewis; and remnants of a rich Native American and pioneer history scattered throughout the Monument. See id. at 7359-60. The President established the Monument for the express purpose of protecting the aforementioned objects. See id. at 7361. To achieve that protection, the President directed the Secretary of Interi- or to develop a transportation plan limiting roads and prohibiting off-road travel: The Secretary of the Interior shall prepare a transportation plan that addresses the actions, including road closures or travel restrictions, necessary to protect the objects identified in this proclamation. For the purpose of protecting the objects identified above, the Secretary shall prohibit all motorized and mechanized vehicle use off road, except for emergency or authorized administrative purposes. Id. Consistent with those mandates, BLM began working on a resource management plan (RMP), including a transportation plan, for the Monument in 2002. As part of the process, and to comply with NEPA, BLM prepared draft and final environmental impact statements (FEIS). In 2008, BLM adopted the RMP. The RMP continues to authorize roads, airstrips and motorboats in the Monument, but at reduced levels. The RMP closes 201 miles of roads and ways year-round, closes another 111 miles seasonally and leaves 293 miles open year-round; prohibits off-road vehicle use; closes four airstrips year-round, closes one seasonally and leaves five open year-round; and restricts motorized watercraft use to particular days of the week in wild and scenic segments (and seasonally in the wild segment) of the Upper Missouri National Wild and Scenic River. The plaintiffs filed two lawsuits challenging the RMP, one brought by the Montana Wilderness Association (MWA) and a second brought by The Wilderness Society, Friends of the Missouri Breaks Monument, the National Trust for Historic Preservation and the Oil and Gas Accountability Project (collectively, TWS). The plaintiffs asserted violations of FLPMA, NEPA and the NHPA. The district court granted summary judgment to the defendants and denied summary judgment to the plaintiffs. The plaintiffs timely appealed. JURISDICTION AND STANDARD OF REVIEW We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s grant or denial of summary judgment. See Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592, 598 (9th Cir.2010). The plaintiffs’ claims under FLPMA, NEPA and the NHPA are reviewed under the Administrative Procedure Act (APA). See id. Under the APA, an agency decision will be set aside only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). We will sustain BLM’s interpretation of the Proclamation so long as it is reasonable. Cf. Kester v. Campbell, 652 F.2d 13, 15-16 (9th Cir.1981) (“In light of an agency’s presumed expertise in interpreting executive orders charged to its administration, we review such agency interpretations with great deference.... All that is required is that the interpretation adopted by the agency be reasonable.”). DISCUSSION I. FLPMA A. Wilderness Study Areas FLPMA provides that the Secretary of Interior “shall review those road-less areas of five thousand acres or more and roadless islands of the public lands, identified during the inventory required by section 1711(a) of this title as having wilderness characteristics described in the Wilderness Act of September 3, 1964 (78 Stat. 890; 16 U.S.C. 1131 et seq.) and shall from time to time report to the President his recommendation as to the suitability or nonsuitability of each such area or island for preservation as wilderness.” 43 U.S.C. § 1782(a). “During the period of review of such areas and until Congress has determined otherwise, the Secretary shall continue to manage such lands according to his authority under this Act and other applicable law in a manner so as not to impair the suitability of such areas for preservation as wilderness .... ” Id. § 1782(c). Thus, as relevant here, FLPMA imposes two requirements on wilderness study areas (WSAs): first, they must be roadless; second, they must be managed so as not to impair their suitability for preservation as wilderness until Congress either designates them as wilderness or releases them for other purposes. MWA contends that the Monument RMP violates each of these mandates. 1. Roadlessness FLPMA does not define the term road-less, but the House Report on the legislation provides a definition that the parties agree is authoritative. Under this definition, “[t]he word ‘roadless’ refers to the absence of roads which have been im proved and maintained by mechanical means to insure relatively regular and continuous use. A way maintained solely by the passage of vehicles does not constitute a road.” H.R.Rep. No. 94-1163, at 17 (1976), reprinted in 1976 U.S.C.C.A.N. 6175, 6191 (emphasis added). Here, the RMP designates 23.8 miles of ways within the Monument’s six WSAs as open. MWA argues that these are really roads, rather than ways, and that the RMP therefore violates FLPMA’s requirement that WSAs be roadless. MWA is correct that, on its face, the RMP appears to assign all two-track routes within the Monument, including ways within WSAs, to Maintenance Level 2. MWA is also correct that Maintenance Level 2 entails maintenance by mechanical means—e.g., installation and maintenance of drainage structures or use of suitable materials such as rock or gravel to control runoff, sedimentation and rutting; grading as necessary to correct drainage problems and erosion; brushing or tree removal to allow administrative access; and sinkhole repair to address safety hazards. We presume that these types of maintenance would convert ways into roads, violating FLPMA’s requirement that WSAs be roadless. Elsewhere, however, the RMP indicates that these types of maintenance do not apply to two-track routes located within WSAs. The RMP states that the Monument’s WSAs will continue to be managed under the BLM’s Interim Management Policy for Lands Under Wilderness Review (IMP). The IMP, in turn, recognizes that WSAs are roadless areas, that roadlessness refers to the absence of routes that have been improved and maintained by mechanical means, that roadlessness must be maintained throughout the wilderness study period and that ways within WSAs are to be maintained “solely by the passage of vehicles.” Thus, although one section of the RMP appears to assign two-track routes within WSAs to Level 2 maintenance, the section of the RMP devoted specifically to WSAs directs that these routes will be maintained as before, solely by the passage of vehicles. The government argues, and we agree, that the RMP’s “specific directive that ‘vehicle ways’ will be maintained under the non-impairment standard of the IMP trumps the general rule that two-track routes/roads will be subject to level 2 maintenance.” Answering Br. of Federal Defendants-Appellees, No. 11-35818, at 36. Because the government’s reading of the RMP is reasonable, we conclude that the RMP does not authorize ways in WSAs to be maintained by mechanical means. We therefore reject MWA’s argument that the RMP violates FLPMA’s requirement that WSAs remain roadless. 2. Nonimpairment As noted, WSAs must be managed “so as not to impair the[ir] suitability ... for preservation as wilderness.” 43 U.S.C. § 1782(c). BLM has implemented this nonimpairment mandate through the IMP. The IMP prohibits uses, facilities or activities in WSAs unless they are temporary and do not create surface disturbance or involve the permanent placement of facilities. Surface disturbance is “any new disruption of the soil or vegetation requiring reclamation (i.e., recontouring of the topography, replacement of topsoil, and/or restoration of native plant cover).” In applying these standards, “preservation of wilderness values”—including roadlessness, naturalness, solitude and opportunities for primitive and unconfined recreation—is the “paramount” and “overriding consideration.” Consistent with these general standards, the IMP defines a way as “a trace maintained solely by the passage of vehicles which has not been improved and/or maintained by mechanical means to ensure relatively regular and continuous use,” and provides that ways “may be used and maintained as before, as long as this does not cause new impacts that would impair the area’s wilderness suitability.” The IMP also imposes procedural requirements on BLM. It states that “BLM will review all proposals for uses and/or facilities within WSAs to determine whether the proposal meets the [nonimpairment] criteria.... Uses and/or facilities found to be nonimpairing may be permitted on lands under wilderness review. Uses and/or facilities found to be impairing will be denied.” In developing the RMP here, BLM began by conducting an inventory of the Monument, including the WSAs, to map existing roads and ways. This inventory identified 51.1 miles of preexisting vehicle ways within the Monument’s six WSAs. BLM then adopted the RMP, closing some roads and ways and designating others as open. Within the WSAs, the RMP closes 27.3 miles of vehicle ways and designates 23.8 miles as open'—14.6 miles seasonally and 9.2 miles year-round. MWA argues that BLM’s decision to designate these ways as open violates the nonimpairment mandate: BLM’s decision to designate system roads in the WSAs results in new surface disturbance and on-the-ground changes that will degrade the areas’ wilderness values pending a final decision from Congress. If the 24 miles of ways were left alone and remained “ways,” they would not be open for motorized use in the Monument, they would not be included on the road system map, and no improvements or maintenance would be allowed. They would remain largely unnoticeable on the landscape and left to revegetate naturally. But now that the 24 miles of ways are system roads, they are open to motorized use, depicted on Monument maps, and subjected to BLM’s minimum road maintenance requirements. Montana Wilderness Association’s Opening Br. 23 (record citations omitted). In MWA’s view, “the new roads will ... be subjected to increased use, now that they are depicted on the Monument’s transportation map and open to the public for motorized travel.” Id. at 24. MWA is correct that increased use has the potential to degrade wilderness values, and thus to violate the nonimpairment mandate. The FEIS recognizes that increased “vehicular travel on roads could increase disturbances to soils; resulting in increased soil compaction, rutting, surface runoff and subsequent erosion.” We also accept, in principle, MWA’s contention that designating ways as open and depicting them on BLM maps can fundamentally transform them from little-known and little-used two-tracks to heavily trafficked thoroughfares. And we accept the proposition that, when such a transformation takes place, it may well degrade wilderness values, not only by producing new surface disturbances on and adjacent to the routes themselves, but also by interfering with wildlife, naturalness, solitude and opportunities for primitive and unconfined recreation. In this case, however, the record does not support MWA’s assertions that BLM’s actions will fundamentally transform these ways by significantly increasing use. The record therefore does not support the conclusion that the RMP will degrade wilderness values and violate the nonimpairment mandate. We reach this conclusion because the government has presented evidence, included in the record, that these ways were designated as open and mapped before the Monument RMP. Prior to the Monument RMP, the lands within the Monument were covered by two other resource management plans, the Judith Valley Phillips RMP (1992) and the West HiLine RMP (1988). Like the RMP at issue here, each of these earlier RMPs “designated” ways as open and depicted them on BLM maps. The West HiLine RMP, for example, states that “[tjravel in WSAs would be limited to existing roads and vehicular ways” and that “BLM would publish maps showing designated areas and applicable restrictions.” It required BLM to “[ijnventory roads, trails, and ways” in WSAs and to “publish [a] map of road restrictions for each area.” In the absence of evidence in the record that the RMP’s designation and mapping of these ways is fundamentally different from existing designation and mapping, we cannot say that BLM’s actions degrade wilderness values. We therefore reject MWA’s argument that the RMP violates FLPMA’s nonimpairment mandate. That being said, we recognize the possibility that a variety of factors—mapping, increased visitorship, more concentrated use brought about by the closure of more than half of the ways in WSAs—could increase use and degrade wilderness values. Under the IMP, BLM is under an ongoing obligation to monitor this use and its impact on wilderness values and to take corrective action if the evolving use of existing ways “eause[s] new impacts that would impair the area’s wilderness suitability.” As the RMP recognizes, “[t]he road system could be modified if vehicle use traffic patterns or resource conditions change.” B. Off-Road Travel The Proclamation prohibits “all motorized and mechanized vehicle use off road, except for emergency or authorized administrative purposes.” 66 Fed.Reg. at 7361. MWA and TWS contend that the RMP violates this mandate by authorizing travel on vehicle ways that do not meet any reasonable definition of road. MWA also argues that the RMP violates the mandate by authorizing travel within 50 feet of roads (except in WSAs) for parking and camping. We address these arguments in turn. 1. Definition of Road For purposes of the off-road travel ban, the RMP defines roads to include not only constructed and improved routes but also two-track routes (ways) created and maintained solely by the passage of vehicles. It provides: Motorized travel is not considered cross-country (off road) on BLM land when: ■—■ The motorized vehicle travels on constructed roads that are maintained by the BLM. Constructed roads are often characterized with cut and fill slopes. — Motorized vehicle use [takes place on] clearly evident, two-track routes with regular travel and continuous passage of motorized vehicles over a period of years. A two-track is where perennial vegetation is devoid or scarce, or where wheel tracks are continuous depressions in the soil yet evident to the casual observer and are vegetated. (Emphasis added.) The plaintiffs argue that this definition of road is unreasonable because it departs from two national definitions of road that existed at the time President Clinton issued the Proclamation in 2001: FLPMA’s roadless definition (1976) and the BLM 9100 Engineering Manual (1991). The plaintiffs are correct that the RMP’s definition of road is a departure from these other definitions. For purposes of wilderness designation, FLPMA limits roads to routes that have been “improved and maintained by mechanical means”; ways, maintained “solely by the passage of vehicles,” are excluded from FLPMA’s definition of road, as explained earlier. H.R.Rep. No. 94-1163, at 17 (1976), reprinted in 1976 U.S.C.C.A.N. 6175, 6191. Similarly, the 1991 Engineering Manual defines a road as a route “maintained for regular and continuous use” and a way as a route that “receives no maintenance to guarantee regular and continuous use.” The definition of road adopted by the RMP to carry out the Proclamation’s off-road travel ban—defining roads to include two-tracks maintained solely by the passage of vehicles—indisputably departs from these definitions. We nonetheless uphold BLM’s definition. First, the Proclamation does not define the terms “road” or “off road.” BLM therefore has discretion to adopt reasonable definitions of these terms. See Kester, 652 F.2d at 15 (holding that we review agency interpretations of executive orders with “great deference”). Second, it is not self-evident that FLPMA’s roadless definition should apply to the Proclamation’s off-road travel ban. FLPMA’s definition arises in a specific context—identifying roadless areas for purposes of ascertaining their suitability for designation as wilderness. There is no reason to assume that FLPMA’s definition applies for all purposes beyond that context—or specifically to off-road travel policies. Third, the RMP’s implementation of the Proclamation’s off-road travel ban is not unreasonable on its face. Consistent with the evident intent of the Proclamation, the RMP plainly restricts motorized use to designated routes, thus prohibiting off-road travel in the ordinary sense of the term. Finally, although the RMP’s definition is contrary to the FLPMA and Engineering Manual definitions discussed above, it is also consistent with several seemingly relevant definitions of road that either existed or were in development at the time the Proclamation was issued: • Judith Valley Phillips RMP (1992) and West HiLine RMP (1988). At the time of the Proclamation, the lands that now make up the Monument were covered by the Judith Valley Phillips and West HiLine resource management plans. Consistent with the Monument RMP, these plans defined a road to include “[a] two-track route established from use of four-wheeled vehicles over a period of time.” • Off-road Policy Governing BLM Lands in Montana (2003). In June 2003, BLM adopted an off-road vehicle (OHV) policy for Montana and the Dakotas. Consistent with the Monument RMP, the OHV policy defines off-road travel to exclude motorized vehicle use on “clearly evident two-track and single-track routes with regular use and continuous passage of motorized vehicles over a period of years.” Although BLM adopted this policy in 2003, two years after President Clinton issued the Proclamation, BLM issued a draft EIS in 1999, more than a year before the Proclamation. See Notice of Availability of the Draft Off-Highway Vehicle Environmental Impact Statement and Plan Amendment, 64 Fed.Reg. 61,932 (Nov. 15,1999). • BLM H-9113 Guidelines for Inventorying Roads (1985). In 2001, when President Clinton issued the Proclamation, BLM’s guidelines for inventorying roads included two-track routes and primitive roads (ways) maintained solely by the passage of vehicles. For these reasons, we cannot say that BLM abused its discretion by defining roads to include vehicle ways for purposes of the Proclamation’s off-road travel ban. BLM’s implementation of the off-road travel ban therefore does not violate FLPMA'. 2. Parking within 500 Feet of Roads The RMP allows parking and dispersed camping within 50 feet of roads and ways within the Monument, other than in WSAs. It provides: Outsidé of the WSAs, motorized or mechanized vehicles may park adjacent to a road to provide a reasonable safe distance for the public to pass. However, parking must be within 50 feet of a road. Parking will be encouraged at previously used sites. In the WSAs, motorized or mechanized vehicles may only park immediately adjacent to a vehicle way or cherry stem road. MWA contends that this rule violates the Proclamation’s off-road travel ban by allowing travel off-road. MWA further argues that the rule cannot be justified by the Proclamation’s “administrative purposes” exception because parking within 50 feet of roads and ways is not “necessary for members of the public to safely turn around.” Montana Wilderness Association’s Opening Br. 27. The government’s arguments to the contrary notwithstanding, we agree with MWA that the 50-foot parking rule authorizes off-road travel. See Record of Decision, Off-Highway Vehicle Environmental Impact Statement and Proposed Plan Amendment for Montana, North Dakota and South Dakota 5 (2003) (treating camping within 300 feet of roads and trails as a form of “cross-country travel”). We agree with the government, however, that the RMP’s parking rule constitutes a permissible interpretation of the Proclamation’s “administrative purposes” exception. BLM concluded that the parking rule provides a reasonable safe distance for the public to pass a parked vehicle. The Proclamation does not define “administrative purposes,” and BLM’s interpretation of the term, although broad, is not unreasonable. BLM’s conclusion that the rule advances the interests of safety is also reasonable. The dispersed camping rule therefore does not violate the Proclamation’s off-road travel ban. C. Bullwhacker Area The Antiquities Act authorizes the President “to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.” 16 U.S.C. § 431 (emphasis added). Here, the Proclamation declares that “[t]he Upper Missouri River Breaks National Monument contains a spectacular array of biological, geological, and historical objects of interest.” 66 Fed.Reg. at 7359. The Proclamation proceeds to describe these objects, including in a paragraph referring to the Bullwhacker area: The Bullwhacker area of the monument contains some of the wildest country on all the Great Plains, as well as important wildlife habitat. During the stress-inducing winter months, mule deer and elk move up to the area from the river, and antelope and sage grouse move down to the area from the benchlands. The heads of the coulees and breaks also contain archeological and historical sites, from teepee rings and remnants of historic trails to abandoned homesteads and lookout sites used by Meriwether Lewis. Id. at 7360. BLM concluded that the Bull-whacker area was not an “object” of the Monument, although objects within the Bullwhacker area were to be protected. MWA argues that BLM was required to protect the Bullwhacker area as an object of the Monument. The Proclamation, however, is ambiguous as to whether the President intended to make the Bull-whacker area itself, as opposed to the wildlife habitat and archeological and historic sites within the Bullwhacker area, an object of the Monument. BLM’s interpretation is therefore entitled to deference, see Kester, 652 F.2d at 15, and we conclude that its interpretation is reasonable. MWA appears to argue in the alternative that, even if the Bullwhacker area itself is not an object of the Monument, the RMP fails to protect Monument objects within the Bullwhacker area. Specifically, MWA complains that the RMP permits three airstrips in the Bullwhacker area, arguing that these airstrips are inconsistent with the Proclamation. MWA relies on a letter written by a BLM official in 2002: At this time, we are not interested in officially re-establishing these airstrips, nor establishing new airstrips within the monument. We are currently managing the monument under the Presidential Proclamation and the June 2001 State Director's Interim Guidance for managing the ... Monument.... Though these documents are silent on airstrips within the monument, we don’t feel they would be in conformance with either. MWA’s argument that this letter bound BLM is unpersuasive. In the very next sentence the letter said, “We are, however, about to begin scoping the issues for a resource management plan (RMP) for the monument, and we will consider addressing the need for these airstrips in the RMP.” MWA also complains that the RMP increases airstrips and roads within the Bull-whacker area when compared to a 1979 inventory of the area. The 1979 inventory showed only 12 miles of roads, whereas the RMP authorizes approximately 46 miles of system roads in the area. MWA, however, does not explain why 1979 should be used as a baseline for assessing compliance with the Proclamation. If the baseline is 2001, when the Proclamation was issued, then the RMP reduces the number of roads within the Bullwhacker area (and the Monument generally). The operative question, moreover, is not how many roads are authorized, but rather whether Monument objects are protected. MWA has not shown that BLM failed to consider or adequately protect Monument objects within the Bullwhacker area. II. NEPA A. Cumulative Impacts “For ‘major federal actions significantly affecting the quality of the human environment,’ 42 U.S.C. § 4332(2)(C), the agency is required to prepare an environmental impact statement (‘EIS’).” Klamathr-Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989, 993 (9th Cir.2004). “An EIS is a thorough analysis of the potential environmental impacts that ‘provide[s] full and fair discussion of significant environmental impacts and ... inform[s] decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.’” Id. (alterations in original) (quoting 40 C.F.R. § 1502.1). An EIS must also consider cumulative impacts: Cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. 40 C.F.R. § 1508.7. Here, MWA argues that BLM failed to take a hard look at cumulative effects by neglecting to analyze how a host of activities authorized by the RMP (including six airstrips, over 400 miles of roads and jet boats), in conjunction with grandparented activities already occurring in the Monument (especially oil and gas development and livestock grazing), may cumulatively impact objects of the Monument, including (1) the “most viable” elk herd in Montana; (2) one of the “premier” big horn sheep herds in the continental United States; and (3) the Upper Missouri National Wild and Scenic River (UMNWSR). At the most basic level, MWA faults the FEIS because it does not include sections devoted exclusively to cumulative impacts on elk, bighorn sheep and opportunities for solitude in the UMNWSR. MWA properly points out that a NEPA analysis should be informed by the laws driving the federal action being reviewed. See Or. Natural Desert Ass’n v. BLM, 625 F.3d 1092, 1109 (9th Cir.2010) (“[B]ecause ‘NEPA places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action,’ the considerations made relevant by the substantive statute driving the proposed action must be addressed in NEPA analysis.” (citation omitted) (quoting Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 553, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978))). The Proclamation and the Antiquities Act focus on the protection of “objects,” so MWA suggests that the FEIS should have included sections—including cumulative impact analyses—devoted to each of the Monument’s objects. An agency, however, has discretion in deciding how to organize and present information in an EIS. See League of Wilderness Defenders-Blue Mountains Biodiversity Project v. U.S. Forest Serv., 549 F.3d 1211, 1218 (9th Cir.2008) (holding that an agency “is free to consider cumulative effects in the aggregate or to use any other procedure it deems appropriate. It is not for this court to tell the [agency] what specific evidence to include, nor how specifically to present it.”). Here, BLM structured the FEIS around specific subjects—air quality; cultural resources; fish and wildlife; geology and paleontology; soils; vegetation; visual resources; water; forest resources; lands and realty; livestock grazing; oil and gas; recreation; transportation; fire management; wilderness study areas; social conditions; and economic conditions—rather than around the objects of the Monument. Although the FEIS does not include sections devoted exclusively to elk, bighorn sheep, the UMNWSR and other objects of the Monument, the FEIS discusses these objects throughout. Bighorn sheep, for example, are discussed not only in the section addressing impacts on fish and wildlife, but also in the sections on livestock grazing, oil and gas, transportation, social conditions and economic conditions. BLM’s decision to structure the FEIS in this fashion was within the agency’s discretion. Whether BLM complied with NEPA thus turns on the substance of the FEIS rather than its form: the question boils down to whether BLM took a hard look at impacts on the UMNWSR, elk and bighorn sheep. We conclude that BLM did so. 1. UMNWSR In 1976, Congress added a 149-mile segment of the Missouri River to the National Wild and Scenic River System. BLM has long managed the river to support a range of recreational experiences, from motorized use to more primitive forms of recreation that afford visitors opportunities for solitude, and the RMP continues to manage the river corridor with this balance in mind. As the FEIS explains, “[bloating the Missouri River just for the sake of being on the water occurs, but the beauty and the solitude along the route are highly important to many visitors.” In addition to discussing opportunities for motorized recreation, the FEIS describes the river valley’s “unique beauty and abundant wildlife” and identifies its “pristine scenery and opportunities for solitude and recreation in an unconfined setting [as] extremely important values.” MWA argues that BLM failed to consider cumulative impacts on these values, especially opportunities for solitude: From river mile 104 to river mile 128, for instance, BLM authorizes an airstrip, motorized use on eight roads, dispersed vehicle camping, motorboats, and a level 2 developed boat camp. In addition, preexisting oil and gas development, livestock grazing (fencing, water developments) and utility rights-of-way corridors are also occurring within or on land adjacent to this wild segment of the River. Montana Wilderness Association’s Opening Br. 35. MWA acknowledges that the FEIS considers the impacts of each of these uses individually but faults BLM for failing to consider their cumulative impact. MWA is correct that the FEIS does not include a section devoted exclusively to cumulative impacts on the river (or to cumulative impacts on opportunities for solitude within the river corridor). The FEIS, however, plainly takes a hard look at these impacts. The FEIS discusses visual quality in the river; the sight, sound and smell effects of motorized boats on primitive river experiences; the effects of campsites and signs on the primitive nature of the river; the effects of ranches and power lines visible from the river; the noise and disturbance effects of personal watercraft; the noise and intrusion of floatplanes on the natural and primitive setting of the river; BLM’s decision to limit commercial use permits to control the volume of use on the river and adjacent campsites; BLM’s decision to impose a two-night camping limit to alleviate sight and sound impacts during the busy season; BLM’s decision to impose Leave No Trace camping rules in primitive settings; BLM’s decision to limit signage to protect visual quality and the primitive setting; BLM’s decision to prohibit personal watercraft and floatplanes on 146 miles of the 149-mile river segment falling within the Monument; BLM’s decision to limit motorized watercraft to certain speeds, directions, days of the week and seasons; the noise and visual impacts of motorcraft used for administrative purposes; the effects of natural gas wells on visitors seeking a primitive setting; the effect of closing 49 percent of roads within the area on walk-in opportunities for visitors; the effects of the dispersed camping rule and signage; the effect of authorizing six airstrips on opportunities for a primitive experience; the potential impact of future development (e.g., of campsites) along the river; BLM’s decision to designate 76 percent of the river to the most restrictive visual management category (VRM Class I); and the effects of roads and airstrips on primitive experiences. Thus, notwithstanding the absence of a cumulative impact section devoted specifically to opportunities for solitude along the river, the FEIS certainly considers the effects of roads, airstrips, planes, motorized watercraft, signs, camping and development on opportunities for solitude and the primitive recreational experience. The impacts of the proposed RMP on opportunities for solitude in the river corridor, therefore, are “set forth in sufficient detail to promote an informed assessment of environmental considerations and policy choices by the public and agency personnel upon review of the Final Environmental Impact Statement.” Lands Council v. Powell, 395 F.3d 1019, 1028 (9th Cir.2005). 2. Elk and Bighorn Sheep MWA also faults BLM for failing to provide a cumulative impacts analysis on elk habitat. It complains that the RMP authorizes five airstrips, hundreds of miles of roads, utility rights-of-way, jet boats, developed recreational sites, livestock grazing and oil and gas development within the elk winter range, but the FEIS does not consider the combined impact of these actions on the local elk herd. Once again, MWA is technically correct: the FEIS contains no section devoted exclusively to the cumulative impact of these uses on elk. The FEIS, however, considers the impact of roads, planes, motorcraft, fences, developed campsites and oil and gas development on wildlife generally, and these analyses focus extensively on elk. The FEIS discusses the effect of road closures on elk habitat; elk habitat and history; impacts of water development on elk; the effect of fire management on elk; the positive impacts on elk winter habitat of limiting surface-disturbing or disruptive activities in winter; the effect of fences on elk and other wildlife; benefits to elk from new water developments resulting in additional distribution of water sources and wetland habitat; seasonal restrictions on right-of-way construction to protect winter habitat for big game species; the significance of requiring right-of-way corridors to restore habitat to native vegetation after construction; the possibility of limiting horn hunting to protect big game from excessive disturbance; the effect of developed recreational sites on big game; the impact of oil and gas drilling on wildlife, including elk, and restrictions adopted to minimize the impact; the effect of roads on big game wildlife; and the effect of airstrips on wildlife. The FEIS, moreover, includes a cumulative impacts analysis for fish and wildlife, and this analysis includes a specific subsection devoted to big game, including elk. Thus, even though the FEIS does not offer a cumulative effects analysis specific to elk, BLM adequately considered cumulative impacts on the Monument’s elk population. For similar reasons, we hold that BLM adequately considered impacts on bighorn sheep. B. Reasonable Range of Alternatives Environmental impact statements “shall provide full and fair discussion of significant énvironmental impacts and shall inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.” 40 C.F.R. § 1502.1. To this end, an EIS shall “Vigorously explore and objectively evaluate all reasonable alternatives,” so as to “present the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decisionmaker and the public.” 40 C.F.R. § 1502.14. “The existence of a viable but unexamined alternative renders an environmental impact statement inadequate.” Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853, 868 (9th Cir.2004) (quoting Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 575 (9th Cir.1998)) (internal quotation marks omitted). Here, BLM considered six airstrip alternatives. Two alternatives would have opened 10 airstrips, one would have opened seven airstrips, one would have opened six airstrips, one would have opened five airstrips year-round and a sixth seasonally and one would have opened no airstrips. No alternatives considered opening between zero and six airstrips. On this record, TWS argues that BLM failed to consider a reasonable range of airstrip alternatives. In TWS’s view, “BLM’s failure to consider a ‘middle ground’ airstrip alternative that would have opened less than a majority of the airstrips was unreasonable.” Appellants’ Opening Br., No. 11-35821, at 57. We disagree. Although BLM could have included an alternative that opened more than zero but less than six alternatives, NEPA did not compel the agency to do so. First, BLM did consider a mid-range alternative—one that opened five of the 10 airstrips year-round and a sixth airstrip seasonally. Second, the touchstone of the NEPA inquiry is “whether an EIS’s selection and discussion of alternatives fosters informed decision-making and informed public participation.” Westlands Water Dist., 376 F.3d at 868 (internal quotation marks omitted). Although TWS faults BLM for failing to consider an additional mid-range alternative, it does not explain why another alternative was necessary to foster informed decisionmaking and public participation. TWS’s reliance on California v. Block, 690 F.2d 753 (9th Cir.1982), is misplaced. Block involved the Forest Service’s classification of roadless areas into three planning categories: Wilderness, Further Planning and Nonwilderness. The FEIS seriously considered eight alternatives, but none of those alternatives designated more than 33 percent of the roadless acreage to undeveloped Wilderness. See id. at 765. The court held that this range of alternative was unreasonable because, although the FEIS “pose[d] the question whether development should occur at all, it uncritically assume[d] that a substantial portion of the [roadless] areas should be developed and considered] only those alternatives with that end result.” Id. at 767. Here, by contrast, BLM considered not only alternatives that would have authorized at least six airstrips but also an alternative that would have authorized no airstrips at all. III. NHPA A. Reasonable Identification Efforts Section 106 of the National Historic Preservation Act (NHPA) “requires that, prior to any federal undertaking, the relevant federal agency ‘take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register [of Historic Places]’ and ‘afford the Advisory Council on Historic Preservation ... a reasonable opportunity to comment with regard to such undertaking.’ ” Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 805 (9th Cir.1999) (per curiam) (second alteration in original) (quoting 16 U.S.C. § 470f). “Section 106 of NHPA is a ‘stop, look, and listen’ provision that requires each federal agency to consider the effects of its programs.” Id. “Under NHPA, a federal agency must make a reasonable and good faith effort to identify historic properties, 36 C.F.R. § 800.4(b); determine whether identified properties are eligible for listing on the National Register based on criteria in 36 C.F.R. § 60.4; assess the effects of the undertaking on any eligible historic properties found, 36 C.F.R. §§ 800.4(c), 800.5, 800.9(a); determine whether the effect will be adverse, 36 C.F.R. §§ 800.5(c), 800.9(b); and avoid or mitigate any adverse effects, 36 C.F.R. §§ 800.8(e), 800.9(c).” Id. NHPA regulations provide that an agency “shall make a reasonable and good faith effort to carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field survey.” 36 C.F.R. § 800.4(b)(1). The BLM Manual sets out three types of surveys that may be used to identify historic and cultural resources. See Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592, 601 n. 10 (9th Cir.2010); BLM Manual 8110 (Release 8-73, Dec. 3, 2004), available at http://www. blm.gov/pgdata/etc/medialib/blm/wo/ Information_Resources_Management/ policy/blm-jmanual.Par.23101.File.dat/8110. pdf (last visited July 13, 2013). • A Class I survey is “a professionally prepared study that includes a compilation and analysis of all reasonably available cultural resource data and literature, and a management-focused, interpretative, narrative overview, and synthesis of the data.” BLM Manual 8110.2.21.A.1. This alternative relies on existing information rather than entailing additional, on-the-ground surveying. The BLM Manual states that “[a] class I inventory is most useful for gaining a comprehensive view of all the known archaeological, historic, cultural and traditional places within a large area, such as the area to be covered by a land-use plan or an EIS.” Id. • A Class II survey is a “probabilistic field survey” or “statistically based sample survey” that “aid[s] in characterizing the probable density, diversity, and distribution of cultural properties in an area.” BLM Manual 8110.2.21.B.1. This alternative involves on-the-ground surveying, but it relies on sampling rather than evaluating every square foot of an area. The BLM Manual provides that “[a] class II survey is most useful for improving cultural resource information in a large area, such as for planning or EIS purposes, where insufficient systematic identification work has been done in the past.” Id. • A Class III survey is an “[i]ntensive” survey that involves “a professionally conducted, thorough pedestrian survey of an entire target area ... intended to locate and record all historic properties” and that “provides managers and cultural resource specialists with a complete record of cultural properties.” BLM Manual 8110.2.21.C.1, C.3. This alternative requires an on-the-ground survey of the entire subject area. The Manual explains that an “[[Intensive survey is most useful when it is necessary to know precisely what historic properties exist in a given area.” BLM Manual 8110.2.21.C. The Class III survey is the most frequently employed method of inventory. See BLM Manual 8110.2.21. BLM has also issued an instruction memorandum for complying with the NHPA when preparing transportation plans. See BLM Instruction Memorandum No. 2007-030 (Dec. 15, 2006). The memorandum suggests that a Class I survey will suffice when a transportation plan proposes to maintain the status quo, but that a Class III inventory should be used when a plan authorizes new roads or increased traffic on existing roads: Proposed designations that will not change or will reduce OHV use are unlikely to adversely affect historic properties and will require less intensive identification efforts. These include designations that (1) allow continued use of an existing route; (2) impose new limitations on an existing route; (3) close an open area or travel route; (4) keep a closed area closed; or (5) keep an open area open.... Where there is a reasonable expectation that a proposed designation will shift, concentrate or expand travel into areas where historic properties are likely to be adversely affected, Class III inventory and compliance with section 106 [of the NHPA], focused on areas where adverse effects are likely to occur, is required prior to designation. Id. (emphasis added). Here, BLM conducted a Class I survey. The agency contracted with North Wind, Inc. to conduct a literature review of previous surveys of the Monument. The literature obtained by North Wind showed that in the past, 336 projects had examined approximately 44,270 acres in the Monument area. These projects generally dated to the 1960s and 1970s and had identified 383 historic sites within the Monument, including 192 sites on public land. In addition to identifying these previously recorded sites, North Wind identified 135 additional potential historic sites by reviewing General Land Office and topographic maps. North Wind also reviewed ethnographic literature to identify areas of Native American spiritual concern. Neither North Wind nor BLM conducted any Class II or Class III surveys. North Wind reported the results of its review in a 164-page report. North Wind’s report included a recommendation that BLM conduct a Class III survey: The review concludes with the observation that over half the sites were recorded in the 1960s and 1970s. Generally, these site forms lack proper site descriptions, site sketches and topographic maps with site locations. The combination of minimal site information, inconsistent survey methods and a dynamic Missouri River that has probably eroded away known cultural resources and exposed new cultural resources suggests that a Class III cultural resource inventory be conducted in the [Monument] to locate and record cultural resources to today’s standards. BLM has not done so. BLM reviewed the North Wind report and incorporated its findings,' as well as other information, into an analysis of cultural resources in the FEIS. The FEIS acknowledged that most of the earlier surveys dated to the 1960s and 1970s and covered only 8 to 16 percent of the Monument area. MWA and TWS contend that BLM failed to make a reasonable and good faith effort to identify historical and cultural resources. MWA argues that BLM was required to conduct a Class III inventory in the areas where historic sites are most likely to be found (the river corridor) and the areas in which historic sites are most likely to be damaged or destroyed (roads, airstrips and dispersed camping sites). TWS argues that BLM should be required to conduct a Class III inventory for the most affected areas, which TWS says are the open road corridors. The government argues that BLM’s reliance on a Class I survey was reasonable and in good faith, citing several considerations: • Relying on BLM’s 2006 instruction memorandum, the government maintains that a Class I inventory was sufficient because the RMP allows continued use of existing roads and airstrips rather than authorizing new roads and airstrips. The government contends that, by authorizing only existing roads and airstrips, the RMP does not authorize any new surface disturbance that could mar historic sites and objects. • The government emphasizes that conducting Class II or Class III surveys of the 375,000-acre Monument would be both time-consuming and expensive. • The government says it may conduct more intensive surveys in the future, such as if additional roads are authorized. • The government argues that BLM’s approach here is consistent with BLM Information Bulletin No. 2002-101 (May 24, 2002), which suggests that a Class I inventory will ordinarily suffice for purposes of general land use planning such as preparation of a resource management plan. There are, however, a number of reasons to question whether BLM’s Class I inventory represents a “reasonable effort” in this case. First, the RMP here is not just any land use plan. It is a land use plan adopted to implement a national monument designated for the very purpose of protecting and preserving historic objects. See 16 U.S.C. § 431; 66 Fed.Reg. at 7359-61. In addition, the RMP is not solely a general land use plan; it also authorizes specific uses, including over 400 miles of roads and ways. The 2002 information bulletin upon which the government relies specifies that “a more detailed level of identification of the scope and nature of cultural resources” may be required when land use planning entails specific impacts. See also BLM Manual 8110.06.D (providing that inventories should take place using the “methods and at a level commensurate with the nature of the proposed undertaking and its likely effects on the protection and management of the cultural resources”). Second, as the government concedes, only 8 percent of Monument lands have been subject to Class III inventories, and only 16 percent of the Monument has been subject to Class II .or Class III inventories. See Answering Br. of Federal Defendants-Appellees, No. 11-35818, at 59. Most of these inventories are four decades old. “Given the age and inconsistencies of work performed in the project area,” North Wind recommended “that a Class III cultural resources inventory be conducted ... to locate and record previously recorded sites to today’s standards and to ascertain the existence of potential historic sites.” The State of Montana also commented that “[further investigations of cultural and historic sites are necessary to develop strategies for their protection.” Third, the government’s reliance on the 2006 instruction memorandum is unpersuasive. Although the 2006 memorandum provides that proposed designations that will not change or will reduce motorized vehicle use ordinarily will require less intensive identification efforts, it also provides that “[pjroposed designations of new routes or new areas as open to OHV use will require Class III inventory.” The plaintiffs argue persuasively that ways in the Monument are more akin to new routes than existing routes because they have never been subject to an NHPA survey previously. As BLM acknowledged in the FEIS, the user-created roads and ways within the Monument were, before the RMP, “not federal undertakings and therefore have not required Section 106 surveys.” For purposes of the 2006 memorandum, then, the roads and airstrips within the Monument may be best understood as new rather than existing impacts. As TWS explains: “Unlike the usual case, where the existing routes have been analyzed before and where redundant analysis would be pointless, the impacts of the user-created routes in the Monument have never been analyzed.” Appellants’ Reply Br., No. 11-35821, at 15. Fourth, even if the RMP is viewed as continuing existing routes rather than designating new ones, the 2006 instruction memorandum provides that a Class III inventory is required “[w]here there is a reasonable expectation that a proposed designation will shift, concentrate or expand travel into areas where historic properties are likely to be adversely affected.” The RMP closes 201 miles out of 605 miles of roads and ways (and closes another 111 miles seasonally), closes four out of 10 airstrips (and closes a fifth seasonally) and allows dispersed camping within 50 feet of a road as opposed to within 300 feet under pre-RMP rules. These consolidations will concentrate pre-RMP traffic on the remaining designated roads, airstrips and camping areas. The RMP, therefore, concentrates travel into areas in which historic sites will be adversely affected. The FEIS recognizes that increased use can damage historical objects and sites. It says that “[t]he potential exists for vehicle traffic and associated camping activities to affect cultural resources, particularly prehistoric sites. Possible effects include artifact displacement, breakage, compaction, and stratigraphic mixing of various cultural assemblages, as well as increased erosion potential, site exposure, and vandalism.” The FEIS adds that “[o]pen roads used during wet periods may grow in width through avoidance of muddy or deeply rutted stretches, which may lead to increased ground disturbance and increase the risk to prehistoric sites and historic ruins adjacent to travel routes.” The memorandum’s Class III survey requirement for concentrated travel therefore applies here. Fifth, the government’s promise to complete Class II and Class III surveys in the future—in connection with future, site-specific decisions involving new disturbances such as the designation of new roads— does not substitute for a more intensive survey now. The plaintiffs point out that the threat to historic sites is posed by existing authorized uses; the government’s promise to evaluate future projects, though important, does nothing to assuage those concerns. In light of these considerations, we hold that BLM failed to make a reasonable effort to identify historical and cultural resources. Consistent with BLM’s own policy documents, BLM is required to conduct Class III inventories for roads, ways and airstrips that have not been surveyed previously or were surveyed decades ago. Because we hold that the NHPA requires Class III surveys solely with respect to roads, ways and airstrips, the government’s concerns about the costs of surveying the entire 375,000-acre Monument do not apply. We recognize that North Wind also recommended a Class III survey for the Missouri River, observing that “a dynamic Missouri River that has probably eroded away known cultural resources and exposed new cultural resources suggests that a Class III cultural resource inventory be conducted ... to locate and record cultural resources to today’s standards.” These threats to historic and cultural resources, however, arise from the natural flow of the river, not from activities authorized by the RMP. Thus, although a Class III survey of the river is advisable for the reasons given by North Wind, we cannot say that the NHPA required it as a precursor to issuance of the RMP. B. Consultation NHPA regulations require agencies to consult with state and tribal historic preservation officers throughout the § 106 process. See 36 C.F.R. §§ 800.4(a)-(c), 800.5(a), 800.6(a), 800.16(f). We reject TWS’s argument that BLM violated these regulations here by failing to consult closely with the Montana State Historic Preservation Officer (SHPO). The record shows that BLM coordinated and collaborated with the SHPO in developing the cultural resources analysis for the EIS and the RMP. To the extent the SHPO’s involvement was limited, this was the SHPO’s choice, not the result of BLM’s failure to provide the SHPO with opportunities to participate. In contrast to Pueblo of Sandia v. United States, 50 F.3d 856, 858-62 (10th Cir.1995), and Queehan Tribe of Fort Yuma Indian Reservation v. U.S. Department of the Interior, 755 F.Supp.2d 1104, 1111, 1118-19 (S.D.Cal.2010), in which the consulting parties complained about a lack of adequate consultation, the SHPO has not complained here. Because BLM consulted the SHPO and afforded the SHPO an opportunity to participate in the process, there was no violation of the regulations. Cf. Te-Moak Tribe, 608 F.3d at 609 (finding no consultation violation where BLM provided the tribe with a sufficient opportunity to identify its concerns about historic properties). CONCLUSION We conclude that the district court properly granted summary judgment in favor of the defendants on the plaintiffs’ FLPMA and NEPA claims. We hold that the court erred by granting summary judgment in favor of the defendants on the plaintiffs’ NHPA claim. We vacate that portion of the judgment and remand with instructions to enter judgment in favor of the plaintiffs on the NHPA claim and to enter an appropriate order requiring BLM to conduct Class III surveys with respect to roads, ways and airstrips that have not been subject to recent Class III surveys. Each party shall bear its own costs of appeal. AFFIRMED IN PART; REVERSED IN PART; REMANDED. . Monument lands include six wilderness study areas. The Secretary of Interior established these areas in 1979 and 1980. . BLM's Interim Management Policy for Lands Under Wilderness Review defines "improved and maintained” as "[ajctions taken physically by man to keep the road open to vehicular traffic”; it defines "mechanical means” as "[u]se of hand or power machinery or tools.” . Should this turn out not to be the case, we assume that MWA could at that time bring an appropriate action to challenge BLM’s actions. .The parties agree that meeting the standards outlined in the IMP ensures compliance with FLPMA’s nonimpairment mandate. See Montana Wilderness Association's Reply Br. 2; Answering Br. of Federal Defendants-Appellees, No. 11-35818, at 30. We therefore assume for purposes of this appeal that the IMP constitutes a reasonable and authoritative interpretation and implementation of FLPMA, 43 U.S.C. § 1782(c). See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). . We have already concluded that the RMP does not subject ways in WSAs to Level 2 maintenance. We therefore necessarily also reject MWA’s argument that subjecting these ways to Level 2 maintenance will degrade wilderness values and violate the nonimpairment mandate. We instead focus on MWA’s argument that the RMP violates the nonimpairment mandate by designating these ways as open and by depicting them on Monument maps. . By pointing out that route closures can increase use on routes that remain open, we do not suggest that route closures impair wilderness values. As a general matter, we presume that route closures have the overall effect of enhancing wilderness values. . Because MWA has not shown that the ways authorized by the RMP are new uses or facilities, we also reject MWA’s argument that BLM violated the IMP’S procedural requirement that BLM review all proposals for uses or facilities within WSAs to determine whether a proposal meets the nonimpairment criteria. . BLM’s compliance with the Proclamation is subject to judicial review under FLPMA, which provides that the Secretary of Interior “shall manage the public lands under principles of multiple use and sustained yield ..., except that where a tract of such public land has been dedicated to specific uses according to any other provisions of law it shall be managed in accordance with such law.” 43 U.S.C. § 1732(a). Because this provision incorporates the Proclamation’s terms into FLPMA, we need not consider whether the Proclamation itself is subject to judicial review. See City of Carmel-By-The-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1166 (9th Cir.1997) (determining whether executive orders were subject to judicial review). . We also reject TWS’s alternative arguments that the RMP’s definition of road constitutes an unexplained change of course, that BLM relied on irrelevant factors when choosing the definition and that BLM failed to adequately explain its reasons for adopting this definition. We agree with our dissenting colleague that BLM could have offered a more complete explanation, but we conclude that the explanation was adequate under the circumstances. See Providence Yakima Med. Ctr. v. Sebelius, 611 F.3d 1181, 1190 (9th Cir.2010) (per curiam) (”[W]hile an agency should provide a reasoned basis for its actions, we 'will uphold a decision of less than ideal clarity if the agency’s path may be reasonably discerned.’ ” (citation omitted) (quoting McFarland v. Kempthome, 545 F.3d 1106, 1113 (9th Cir.2008))). . On its face, this instruction memorandum applies only to transportation plans governing off-highway vehicle (OHV) travel. The parties agree, however, that it governs transportation plans generally. All parties, moreover, appear to view this memorandum as authoritative. . The Monument includes about 375,000 acres of BLM land, 80,000 acres of private land and 39,000 acres of state land. . We reject intervenor-appellees Missouri River Stewards, Fergus County, Phillips County, Chouteau County and Blaine County’s argument that the plaintiffs lack standing to assert these claims. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 183, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-63, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). . BLM Information Bulletin No. 2002-101 provides: The scope and scale of cultural resource identification are much more general and less intensive for land use planning than for processing specific land use proposals. Instead of new, on-the-ground inventory, the appropriate identification level for land use planning is a regional overview; i.e., (1) a compilation and analysis of reasonably available cultural resource data and literature, and (2) a management-oriented synthesis of the resulting information. (See Manual Section 8110.) If land use decisions, however, are more specific in terms of impacts, they may require a more detailed level of identification of the scope and nature of cultural resources during land use planning.

Montana Wilderness Ass'n v. Connell

GOULD, Circuit Judge, concurring in part and dissenting in part: I concur in the majority opinion’s discussion of the National Environmental Policy Act and the National Historic Preservation Act. I also join the majority’s discussion of the Resource Management Plan’s (RMP) compliance with the Federal Land Policy and Management Act of 1976 (FLPMA) and the Proclamation insofar as it concludes (1) that the RMP did not violate the requirement that Wilderness Study Areas remain roadless and unimpaired and (2) that allowing parking and dispersed camping within 50 feet of roads is reasonable under the administrative-purpose exception to the Proclamation’s off-road travel ban. But I part company with the majority’s conclusion that the RMP’s definition of “road” for purposes of the off-road travel ban is reasonable. The Proclamation requires the Bureau of Land Management (BLM) to prepare a transportation plan that “prohibit[s] all motorized and mechanized vehicle use off road,” for the express “purpose of protecting the objects” of the Monument. Proclamation No. 7398, 3 C.F.R. § 7398 (2002). The off-road travel ban is intimately tied to the Proclamation’s protection of Monument objects and to its goal of maintaining the “remote” and “undeveloped” nature of the Monument. Id. The Proclamation did not define “road” or “off road.” The RMP defined a “road” as “a linear route segment that can be created by the passage of vehicles (two-track); constructed; improved; or maintained for motorized travel.” Under this definition, the Proclamation’s off-road travel ban will not be violated by a vehicle traveling on a two-track—a route “where perennial vegetation is devoid or scarce, or where wheel tracks are continuous depressions in the soil yet evident to the casual observer.” I conclude that BLM’s adoption of this definition of “road” violates the Proclamation, FLPMA, and the Administrative Procedure Act (APA) because BLM did not explain how its expansive definition of “road” serves the Proclamation’s essential purpose of protecting Monument objects. The majority upholds BLM’s definition of “road” in the RMP based in part on the deference that we give BLM’s interpretation of the Proclamation and the majority’s conclusion that the RPM’s “road” definition is “not unreasonable on its face.” True, we owe deference to BLM’s interpretation of the Proclamation. See Kester v. Campbell, 652 F.2d 13, 15 (9th Cir.1981). But even with deference, I disagree that BLM’s definition of “road” can survive APA review. Under the APA, an “agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Motor Vehicle Mfrs. Ass’n, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). BLM did not do that here. The RMP does not explain why the selected definition of “road” for the transportation plan and the off-road travel ban serves the purpose of protecting Monument objects. That is enough to invalidate the BLM’s process on this point. But if there were any doubt, it should be dispelled by the common-sense understanding that vehicle travel on the primitive two-track routes can only impair the objects that the Proclamation sought to protect. To define roads so broadly is to strip the off-road travel ban of its significance for the Monument. The national monument designation changed the status quo for the Upper Missouri River Breaks area, elevating protection of the “biological, geological, and historical objects of interest.” 3 C.F.R. § 7398 (2002). But the definition of “road” adopted in the RMP for the off-road travel ban maintains the same definition of road employed in the two RMPs that previously governed the area, the Judith Valley Phillips RMP and the West HiLine RMP. The Monument RMP does not explain why this broad definition of “road” best serves the Proclamation’s purpose. If BLM had consistently used one definition of “road,” it might be fine for it to use that definition here without explanation. But that is not the case. The RMP, itself, employs two different definitions of road, one for the off-road travel ban and one for Wilderness Study Areas. The Wilderness Study Area road definition is derived from FLPMA’s legislative history, which defined roads as routes “improved and maintained by mechanical means to insure relatively regular and continuous use.” H.R.Rep. No. 94-1163, at 17 (1976), reprinted in 1976 U.S.C.C.A.N. 6175, 6191. Ways, by contrast, were defined as routes “maintained solely by the passage of vehicles.” Id. These definitions of “roads” and “ways” were also used in the BLM’s 9100 Engineering Manual, which was in effect at the time of the Proclamation. Because BLM had more than one viable definition of “road” to choose from-—one that included two-track routes and one that did not— its failure to explain how its selected definition of “road” best serves the Proclamation’s goals of protecting Monument objects is troubling and does not bode well for preservation. This concern is magnified by the confusion surrounding the definition of “road” during the development of the RMP. The record contains correspondence between BLM employees working on the RMP debating what definition of road should be adopted in the RMP. And the State of Montana expressed concern about the inclusion of “two-track” routes in the RMP definition of “road” because it contributed to “very high road density given that the Monument designation was based on its remote nature and its ‘wild country.’ ” The State of Montana’s concern shows that it is at least debatable whether BLM’s adoption of the more expansive “road” definition comports with the Proclamation’s purpose. BLM might have settled the debate by giving sound reasons for why the RMP’s definition of “road” protects Monument objects. But it did not. The Government argues that the rationale for the RMP’s “road” definition can be discerned through references to BLM Manual 9113 and road inventory guidelines and that its adopted definition adheres to national guidance for defining roads. This argument misses the mark. The issue is not that the RMP’s definition of “road” is unreasonable in and of itself; defining roads to include two-tracks may be reasonable in many contexts. Rather, the issue is that BLM adopted a broad definition of “road” without explaining how that definition best protects Monument objects and advances the goals behind the off-road travel ban. A common-sense review yields concern that the RMP’s definition could impair these objects. This concern is not alleviated by anything in the record that explains or supports the conclusion that including “two-tracks” in the RMP’s definition of “road” advances the Proclamation’s goals of preservation and protection. I would hold that, on this record, the RMP’s definition of “road” violates the Proclamation, FLPMA, and the APA because BLM has not “articulate[d] a satisfactory explanation for its action.” Motor Vehicle Mfrs. Ass’n, Inc., 463 U.S. at 43, 103 S.Ct. 2856.

Montana Wilderness Ass'n v. McAllister

OPINION FISHER, Circuit Judge: A coalition of environmental groups (Montana Wilderness Association, et al., hereinafter MWA) challenges the 2006 Gallatin National Forest Travel Management Plan prepared by the United States Forest Service, arguing that the travel plan violates the Montana Wilderness Study Act of 1977 (Study Act). We hold that the Study Act requires the Service to ensure that current users of a wilderness study area are able to enjoy the wilderness character of the area as it existed in 1977, pending a congressional decision on whether to designate the area as wilderness. In this case, the Service has not adequately explained how the 1977 wilderness character of the relevant study area, particularly the opportunities for solitude it offers, has been maintained despite an increase in the volume of motorized and mechanized recreation in the area. We therefore conclude that the Service’s adoption of the travel plan was arbitrary and capricious, and accordingly affirm the district court’s decision finding that the Service’s actions violate the Administrative Procedure Act (APA). Statutory Background We begin with a brief overview of the statutes that govern the land management decision challenged in this case. The 1964 Wilderness Act established a National Wilderness Preservation System composed of congressionally designated wilderness areas. See Pub.L. No. 88-577, 78 Stat. 890 (1964); 16 U.S.C. § 1131(a). Under the Wilderness Act, “wilderness” is defined as “an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.” 16 U.S.C. § 1131(c). The definition further specifies: An area of wilderness ... (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value. Id. Unlike national forests, which are generally managed to sustain a variety of uses, see id. § 1604(e), wilderness areas must be managed to preserve their “wilderness character,” id. § 1133(b). Only certain recreational uses are appropriate in wilderness areas; motorized and mechanized activities are generally prohibited. See id. § 1133(b), (c). In 1967, the Forest Service undertook a nationwide inventory of large roadless areas within the National Forest System, “selecting] areas with the most merit for specific study as possible additions” to the National Wilderness Preservation System. S.Rep. No. 95-163, at 2 (1977). Congress became concerned, however, that in conducting this review the Service may have “unjustifiably rejected from wilderness consideration” several large tracts in Montana. H.R.Rep. No. 95-620, at 3 (1977). In response, Congress passed the Study Act, which identified nine wilderness study areas in Montana for renewed evaluation. See Pub.L. No. 95-150, § 2(a), 91 Stat. 1243 (1977). The Study Act directed the Secretary of Agriculture to review these study areas’ “suitability for preservation as wilderness” and to advise Congress whether each study area should be designated as wilderness or removed from study area status. Id. § 2(a), (b). The Study Act also instructed that, pending congressional action on the Secretary’s recommendations, the study areas “be administered ... so as to maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System.” Id. § 3(a). The Secretary, acting through the Service, has long since made these recommendations. Congress, however, has not yet acted on them. Accordingly, until Congress either designates the study areas as wilderness areas or removes their Study Act protection, the Service must continue to manage them to maintain their 1977 wilderness character and potential for wilderness designation. Factual and Procedural Background The Hyalite-Poreupine-Buffalo Horn Wilderness Study Area, a 155,000-acre region within southwest Montana’s Gallatin National Forest, is managed under the Study Act. Until recently, the Service administered the entire Gallatin National Forest, including the study area, under a forest plan prepared in 1987. Since the forest plan was prepared, however, recreation and travel uses of the Gallatin National Forest have evolved substantially. Motorized and mechanized recreational use has intensified: “[u]se of snowmobiles and ATVs has grown in popularity,” for instance, and mountain bike activity has “exploded.” Observations by Forest Service personnel further indicate that motorized and mechanized recreational use has increased in the study area in particular, not just in the Gallatin National Forest in general, although the Service does not possess “statistically sound” data fully illustrating these historical changes. For example, during the winter of 1999-2000, snowmobile traffic on the Big Sky snowmobile trail, which passes through the study area, was roughly double that observed in the winter of 1978-79. In 2002, realizing that “the demand for some recreation opportunities” in the Gallatin National Forest might “be reaching the point of exceeding the capability of the land to provide them,” the Service began preparing the travel plan to balance travel and recreational uses with other management goals. In October 2006, the Service released the record of decision (ROD) for the travel plan, along with a final environmental impact statement (FEIS) prepared to satisfy the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. When preparing the portion of the travel plan that covers the study area, the Service recognized that the increasing use of motorized and mechanized transports like snowmobiles, motorcycles and mountain bikes, none of which can be used in designated wilderness areas, might potentially degrade the study area’s wilderness character relative to the 1977 baseline, in contravention of the Study Act’s mandate that 1977 wilderness character be maintained. Thus, to comply with the Study Act, the Service examined which portions of the study area were available for motorized and mechanized recreational use in 1977, and compared the 1977 areas to the areas available in 2006, when the travel plan was prepared. After conducting this analysis, the Service restricted summer use of motorcycles and mountain bikes to 168 total trail miles, and restricted winter use of snowmobiles to an 11,000-acre open area surrounded by a 7000-acre buffer zone. The parties dispute whether these restrictions amount to a net increase or decrease in the physical area of motorized and mechanized use relative to the 1977 baseline. All acknowledge, however, that the Service at least attempted to comply with its Study Act management obligations by reconfiguring the physical areas in which such use occurs. Although it reconfigured the area over which motorized and mechanized use occurs relative to 1977, however, the Service did not explicitly account for the increase in volume of use over time. The Service acknowledged that use volume has increased in the study area since 1977, but noted that accounting for the increase was somewhat problematic because there were no “reliable (statistically valid) recreation use data available.” The Service concluded, however, that the missing data were not relevant in any event because the Study Act requires the Service to maintain only those physical characteristics that may affect a study area’s ability to provide a wilderness experience in the event of future wilderness designation. The Service did not attempt to maintain the area’s 1977 wilderness character, including the relatively low motorized use volumes that existed at that time, for the enjoyment of current users. After the travel plan was finalized, MWA brought this action under the APA, alleging the travel plan and FEIS “allow motorized and mechanized activities [in the study area] to increase beyond the 1977 status quo,” in contravention of the Study Act. MWA also alleged that the Service violated NEPA by failing adequately to disclose and analyze the impact of the travel plan on the study area’s wilderness character. Citizens for Balanced Use, et al. (Citizens), a coalition representing enthusiasts of motorized and mechanized recreation, filed a separate lawsuit against the Service, alleging just the opposite: that the travel plan unlawfully restricts motorized use in the study area. On appeal, however, Citizens largely supports the restrictions adopted by the Service and argues that the Service’s decision is entitled to deference. The district court consolidated the two cases. It then granted MWA’s motion for summary judgment and denied the cross-motions of the Service and Citizens. The court concluded that the Service failed adequately to explain how the travel plan’s reconfiguration of the physical areas open to motorized and mechanized use satisfied the Study Act’s mandate to maintain 1977 wilderness character, in light of acknowledged increases in use volume. See Mont. Wilderness Ass’n v. McAllister, 658 F.Supp.2d 1249, 1255 (D.Mont.2009). The court recognized that the Service lacked complete historical data that would allow it to quantify the volume of use increase precisely, see id., but held that the Service was nonetheless not permitted to ignore increased volume of use altogether. See id. at 1256. The court found that the Service had done so, and that the omission “rendered] the decision arbitrary and capricious” in violation of the APA. Id. at 1255. The court also ruled that, by asserting that the missing historical volume of use data were not relevant to its Study Act analysis, the Service violated its NEPA obligation to include in the FEIS “a statement of the relevance of ... incomplete or unavailable information to evaluating reasonably foreseeable significant adverse impacts on the human environment.” 40 C.F.R. § 1502.22(b)(2); see McAllister, 658 F.Supp.2d at 1255-56. The court enjoined the Service from continued implementation of the travel plan and remanded to the agency. See McAllister, 658 F.Supp.2d at 1266. The Service appealed. Jurisdiction and Standard of Review We have jurisdiction over the Service’s challenge to the district court’s remand order under 28 U.S.C. § 1291. See Chugach Alaska Corp. v. Lujan, 915 F.2d 454, 457 (9th Cir.1990) (holding that an agency may appeal immediately from a remand order because “review would, as a practical matter, be foreclosed if an immediate appeal were unavailable”). “We review the district court’s summary judgment de novo, applying the same standards that applied in the district court.” Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 778 (9th Cir.2006). Because NEPA and the Study Act do not contain independent judicial review provisions, our review of the travel plan’s compliance with these statutes is governed by the APA, which allows us to set aside agency decisions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). In reviewing the Service’s justification for its decision under the arbitrary and capricious standard, we ask only whether the agency “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 [an explanation that] is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir.2008) (en banc) (alteration in original) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)) (internal quotation marks omitted), abrogated on other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). In reviewing the Service’s interpretation of the Study Act, we apply the framework set forth in Chevron U.S.A Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 129 S.Ct. 2458, 2469, 174 L.Ed.2d 193 (2009).' Discussion I. We agree with the district court that the travel plan does not adequately address the Service’s Study Act obligation to maintain the study area’s 1977 wilderness character. The Service first erroneously determined that the Study Act does not require it to maintain the 1977 wilderness character of the study area for the enjoyment of the area’s current users. Then, based on its misinterpretation of the Study Act, the Service ignored the obvious impact of increased volume of motorized and mechanized use on current users’ ability to enjoy the study area’s 1977 wilderness character. Because the Service entirely failed to consider this important aspect of its Study Act obligation, the travel plan is arbitrary and capricious. A. We first address the Service’s interpretation of the Study Act. As we explained in Russell Country Sportsmen v. United States Forest Service, 668 F.3d 1037, No. 10-35623, 2011 WL 4820942 (9th Cir. Oct. 12, 2011), the Study Act imposes two requirements. “First, the Service must administer study areas so as to maintain their wilderness character as it existed in 1977. Second, the Service must administer the areas so as to maintain their potential for designation as wilderness areas — i.e., as part of the National Wilderness Preservation System.” Id., 668 F.3d at 1042. The dispute in this case centers on the first requirement, to maintain 1977 wilderness character. The parties offer competing interpretations of this requirement. The first — offered by the Forest Service in its appellate brief — is that the statute requires only that the Service maintain those “physical, inherent characteristics” of the study areas that will make them suitable for future wilderness use. The second — urged by MWA, and implicitly adopted by the district court — is that the Service must maintain 1977 wilderness character, including 1977’s relatively low volumes of motorized use, for the enjoyment of current users of the study areas, in addition to ensuring that the areas’ physical potential for future wilderness designation is not destroyed. We conclude, based not only on the language of the Study Act and the 1964 Wilderness Act but also on basic common sense, that MWA’s interpretation is correct. The Service’s argument that it can satisfy its statutory obligation to maintain a study area’s wilderness character by preserving only its physical wilderness characteristics is out of step with the 1964 Wilderness Act, which the Service agrees should inform the definition of “wilderness character” for purposes of the Study Act. The Wilderness Act does not define “wilderness” solely according to “physical, inherent characteristics.” Instead, it states that, in addition to having physical characteristics such as large acreage, a wilderness “has outstanding opportunities for solitude.” 16 U.S.C. § 1131(c). An area’s ability to provide solitude depends on a current user’s perception of other users around him — not just on the physical characteristics of the land. See American Heritage Dictionary of the English Language 1655 (4th ed. 2000) (defining “solitude” as “The state or quality of being alone or remote from others”); Oxford English Dictionary (online version June 2011) (defining “solitude” as “The state of being or living alone; loneliness; seclusion; solitariness (of persons)”). Furthermore, because the Wilderness Act governs current wilderness areas, the term “opportunities for solitude” must include the experience of current, as well as future, users of the area. See Webster’s Third New International Dictionary 2170 (2002) (defining “opportunity” as “a combination of circumstances, time, and place suitable or favorable for a particular activity or action <the many small rivers ... offered unlimited opportunities for water transport — Amer. Guide Series: R. I.> < artists are given ~ to do creative work— Amer. Guide Series: N. H.>” (alteration in original)). The Service’s focus on physical characteristics alone, without regard to the opportunities for solitude currently available, fails to capture this important aspect of wilderness character. In Russell Country Sportsmen, 668 F.3d at 1043, we interpreted the statutory mandate to maintain wilderness character to require that the Service “provid[e] current users with opportunities for solitude comparable to those that existed in 1977” (emphasis added). This interpretation accords not only with the language of the Wilderness Act, but also with common sense. If the Study Act allowed the Service to focus on physical wilderness characteristics alone, even a massive escalation in noisy, disruptive motorized use would trigger no management response so long as there was no resulting physical degradation. For example, the Service could allow sightseeing helicopters to fly over the study areas in unlimited numbers, filling the study areas with loud and intrusive noise. Because the helicopters would likely never touch the ground, however, their presence' — which from a common-sense perspective would plainly degrade the areas’ wilderness character — could persist uncontrolled. We agree with the district court that confronted this very situation that Congress could not have intended to permit such a result. See Greater Yellowstone Coal. v. Timchak, No. CV-06-04-E-BLW, 2006 WL 3386731, at *3-*4 (D.Idaho Nov. 21, 2006) (sensibly observing, in analyzing the impacts of helicopters used for heli-skiing in a Wyoming wilderness study area, that “loud helicopter flights [can] be inconsistent with solitude,” and holding that the Service was required to address the impact of a tenfold increase in helicopter flights on the study area’s wilderness character). The Service’s determination that it need not maintain wilderness character for the enjoyment of current study area users is also inconsistent with its own past practice. See S. Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882, 901 (D.C.Cir.2006) (examining the agency’s statutory interpretation for consistency with its past practice). For example, in the portion of the 2006 Region 1 supplement to the Forest Service Manual that explains how study areas should be managed to maintain their 1977 wilderness character, the Service stated that “[i]f conflicting uses are occurring” in a study area, responsible officials should “consider separating the uses geographically through an appropriate planning process” by, for example, “identifying] areas for snowmobiling and areas for cross-country skiing and snowshoeing.” But user conflict has no clear impact on an area’s physical landscape — the only sort of impact the Service now argues is relevant— although it does have an obvious effect on the study area’s current users. The Service’s determination, in its own manual supplement, that easing user conflict may help maintain wilderness character shows that it once considered current user impacts to be relevant to its Study Act obligations, even if it has abandoned that position in this litigation. Likewise, in evaluating the wilderness character of the Middle Fork Judith Wilderness Study Area at issue in Russell Country Sportsmen, the Service examined current users’ perceptions of the study area. In a preliminary assessment of historical changes in the area’s wilderness character, which the Service included in its final environmental impact statement, the Service focused on wilderness experience for current users, explaining, for example, that “[t]he opportunity to find natural quiet during the winter is the same now as in 1977,” and commenting that “[ljevels of use in the backcountry have not increased dramatically since 1977.” The Service’s extensive discussion of these changes in current users’ ability to enjoy the wilderness character of the Middle Fork Judith Wilderness Study Area undermines its assertion in this case that it has never interpreted the statute “to require management that would provide a wilderness experience in the study areas,” comparable to that available in 1977, before a decision on wilderness designation is made. We therefore conclude, consistent with the Wilderness Act and with the Service’s own past practice, that the Study Act requires the Service to maintain a study area’s 1977 wilderness character for the enjoyment of current users. Thus, because wilderness character depends in part on the availability of opportunities for solitude, the Service must “provid[e] current users with opportunities for solitude comparable to those that existed in 1977.” Russell Country Sportsmen, 668 F.3d at 1043. The Service’s determination to the contrary is inconsistent with the Study Act. The Service contends that we should defer to its interpretation of the Study Act, which it says can be inferred from its focus on the study area’s physical wilderness characteristics in the travel plan and FEIS. We recognize that cogent administrative interpretations of ambiguous statutes “warrant respect,” Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 488, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004) (quoting Wash. State Dep’t of Social & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 385, 123 S.Ct. 1017, 154 L.Ed.2d 972 (2003)) (internal quotation marks omitted), even if they are not the product of any “relatively formal administrative procedure,” such as notice-and-comment rulemaking, United States v. Mead Corp., 533 U.S. 218, 230, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). We do not believe, however, that any cogent interpretation of the Study Act can be discerned from the brief discussion of wilderness character in the travel plan and FEIS or from the 2006 Region 1 supplement to the Forest Service Manual. Moreover, the Service’s interpretation of the statute deviates from the terms of the Wilderness Act and Study Act, as well as from the Service’s own past practice. It is therefore not entitled to deference. See Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. B. The Service entirely failed to explain how the travel plan provides current study area users with opportunities for solitude comparable to those that existed in 1977 despite increased volume of motorized and mechanized use. The Service recognized that motorized use has increased in volume, but reasoned that it need not account for the increase because the area’s physical features, such as “size, presence of vegetative or topographic screening, [and] distance from civilization,” had not changed. This is non-responsive. Increased volume of motorized use has obvious and potentially significant impacts on the opportunities for solitude available within a study area, even if the area remains physically unchanged. Increased noise from snowmobiles and motorcycles, for example, may greatly disturb users seeking quiet and solitude. See Timchak, 2006 WL 3386731, at *3. If a hypothetical hiker traversing a certain route in 1977 would have encountered one noisy motorcycle, but today would encounter 20, his opportunities for solitude have plainly decreased, unless the impact can somehow be offset by other factors or considered so small as to make no qualitative difference. The Service made no attempt to consider or account for these impacts of increased volume of use. There is nothing in the travel plan or FEIS that explains how current users’ ability to seek solitude in the study area has not declined since 1977, given the increased volume of motorized and mechanized vehicles. Cf. id., 2006 WL 3386731, at *4 (“If the FEIS had discussed how the overall ... wilderness character — that is, the opportunities for solitude and primitive recreation — would be maintained by the [Service’s decision], despite the ten-fold increase in the effects of helicopter use, the FEIS would comply with the Wyoming Wilderness Act[, which contains an identical mandate to maintain 1984 wilderness character]. However, that analysis is missing.”). The Service therefore entirely failed to consider an important aspect of its obligation to maintain 1977 wilderness character, making the travel plan arbitrary and capricious. See Lands Council, 537 F.3d at 993 (describing arbitrary or capricious review). The Service must take a fresh look at its decision and determine, after taking into account all of the impacts of increased motorized use volume, whether the motorized use restrictions it imposes are adequate to maintain 1977 wilderness character for the enjoyment of current users. C. Our holding does not require the Service to do the “impractical” or the “nearly impossible,” as the Service protests. Although the Service must ensure that the study area’s overall 1977 wilderness character is not degraded, there is no requirement that it replicate 1977 conditions precisely. We recognize that the Service’s attempt to maintain 1977 wilderness character, including 1977 opportunities for solitude, may necessarily be approximate and qualitative. We also acknowledge that the Service does not possess complete historical data illustrating changes in the volume of recreational use in the study area over time. But the proper response to that problem is for the Service to do the best it can with the data it has, not to ignore the volume of use increase completely. Agencies are often called upon to confront difficult administrative problems armed with imperfect data. See, e.g., Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (“It is not infrequent that the available data do not settle a regulatory issue and the agency must then exercise its judgment in moving from the facts and probabilities on the record to a policy conclusion.”); Natural Res. Def. Council, Inc. v. EPA, 529 F.3d 1077, 1085 (D.C.Cir.2008) (describing the agency’s efforts to evaluate health risks caused by certain industrial chemicals despite “gaps in the data” by backfilling certain data points with “environmentally protective defaults”). Our decision requires only that the Service grapple with the problem the statute defines. We likewise do not dictate the correct substantive outcome on remand. We do not necessarily agree with the district court, for example, that “the only way [the Service’s] decision can survive the arbitrary and capricious standard of review is to substantially reduce the overall area for vehicle use or to reduce overall motorized and mechanized vehicle access.” McAllister, 658 F.Supp.2d at 1256 (emphasis added). Although the Service might reasonably compensate for an increase in the volume of motorized use by reducing the overall area of impact, we do not assume that this is the only proper response to increased volume of use when relevant data are scarce. We do assume there may be other reasonable management responses to the problem the Service faces. II. The Service’s failure to appreciate the relevance of the historical increase in volume of use for purposes of its Study Act analysis also resulted in a failure to comply with NEPA regulations requiring acknowledgment that relevant data are unavailable or incomplete. Under 40 C.F.R. § 1502.22: When an agency is evaluating reasonably foreseeable significant adverse effects on the human environment in an environmental impact statement and there is incomplete or unavailable information, the agency shall always make clear that such information is lacking. ... (b) If the information relevant to reasonably foreseeable significant adverse impacts cannot be obtained because the overall costs of obtaining it are exorbitant or the means to obtain it are not known, the agency shall include within the environmental impact statement: (1) A statement that such information is incomplete or unavailable; (2) a statement of the relevance of the incomplete or unavailable information to evaluating reasonably foreseeable significant adverse impacts on the human environment; (3) a summary of existing credible scientific evidence which is relevant to evaluating the reasonably foreseeable significant adverse impacts on the human environment, and (4) the agency’s evaluation of such impacts based upon theoretical approaches or research methods generally accepted in the scientific community. In addressing § 1502.22, the Service noted that historical data tracking changes in the volume of recreational use within the study area could not be obtained, but concluded that such data were not necessary in any event. This conclusion was apparently based on the Service’s faulty determination that it was not obligated to maintain the study area’s 1977 wilderness character, including 1977 opportunities for solitude, for the benefit of current users. The FEIS stated: Historic recreation use data specifically for the [study area] is not available, nor is it possible to acquire such data at the present time. 1502.22(b)(2) directs the Agency to provide a statement of relevance of the incomplete or unavailable information to evaluating reasonably foreseeable significant adverse effects on the human environment. Changes in recreation use have certainly occurred within the [study area] since 1977.... However, the volume of recreation use was not a component the original WARS evaluations of these areas were conducted relative to opportunities for solitude, [sic] Rather the WARS analysis required consideration of the physical parameters of the area. Size, distance from roads, topographic and vegetative screening were the primary factors used to evaluate opportunities for solitude. Thus — • discrete data that tracks changes in the volume of use over time are not necessary for evaluating the effects of proposed travel plan changes relative to [study area] physical characteristics that provide opportunities for solitude. This discussion does not satisfy the requirements of § 1502.22. As we have explained, the historical increase in volume of use is relevant to the Study Act analysis, contrary to the Service’s reasoning. We accept the parties’ agreement that if historical volume of use data are relevant to the Study Act analysis, they are also relevant for purposes of NEPA analysis, and thus are “relevant to reasonably foreseeable significant adverse impacts” under § 1502.22. We therefore hold that the Service incorrectly determined that historical volume of use data are irrelevant for § 1502.22 purposes. We do not agree with the Service that this error was harmless. See 5 U.S.C. § 706 (directing that, in the course of judicial review of agency action, “due account shall be taken of the rule of prejudicial error”). As explained above, the Service’s failure to consider the impact of increased use volume on the study area’s wilderness character caused it to ignore an important aspect of the problem before it. We cannot conclude that this shortcoming “clearly had no bearing on the procedure used or the substance of [the] decision reached.” Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487 (9th Cir.1992) (quoting Sagebrush Rebellion, Inc. v. Hodel, 790 F.2d 760, 764-65 (9th Cir.1986)) (internal quotation marks omitted). On remand, the Service must acknowledge the relevance of the missing information and comply with § 1502.22(b)’s instructions for assessing reasonably foreseeable adverse impacts despite gaps in the relevant data. Conclusion We hold that the travel plan improperly ignores the impact of increased volume of motorized and mechanized use on current users’ ability to seek quiet and solitude in the study area. Because the Service entirely failed to consider this important aspect of its duty to maintain the study area’s 1977 wilderness character, its decision is arbitrary and capricious. We affirm judgment in favor of MWA and against the Service and Citizens. AFFIRMED. . See U.S. Dep’t of Agric., Forest Service, Forest Plan, Gallatin National Forest (1987), available at http://www.fs.nsda.gov/ (select "Gallatin” from drop-down menu; follow "Go” hyperlink; select "Land & Resources Management,” then "Planning”; follow "Gallatin Forest Plan” hyperlink) (last visited Aug. 29, 2011). . Although they are of course not motorized, mountain bikes are mechanized, or mechanical, transport vehicles that are not allowed in designated wilderness areas. See Peter A. Appel, Wilderness and the Courts, 29 Stan. Envtl. L.J. 62, 87 (2010) ("Bicycles, particularly mountain bikes, are now popular forms of recreational transportation in back country areas but the land management agencies prohibit them in wilderness areas because they are 'mechanical transport.’ "). . Snowmobiles are not confined to trails, so the travel plan’s restrictions on the area of snowmobile use are framed in terms of acreage rather than trail miles. . A different coalition of motorized recreational use groups also intervened in MWA’s lawsuit and cross-claimed against the Service, also alleging unlawful restrictions on motorized use. In this opinion, we refer to all recreational use groups collectively as "Citizens.” One coalition of recreational groups also brought NEPA claims relating to the entire travel plan, not just the portion addressing the study area. Citizens' cross-appeal challenges the district court’s rejection of these claims. We address the cross-appeal in a memorandum disposition filed concurrently with this opinion. . Because we remand so that the Service may reconsider its motorized and mechanized use restrictions, we need not resolve the parties' factual dispute regarding the extent to which the restrictions adopted by the travel plan alter the physical area in which motorized and mechanized uses will occur relative to the 1977 baseline. We do, however, agree with the district court in principle that any comparison the Service may choose to conduct between the physical extent of motorized use under the travel plan and the extent of such use in 1977 would most sensibly be focused, to the extent practicable, on the area over which use actually occurred in 1977, as opposed to the area in which use was authorized. After all, recreational use most clearly impacts wilderness character in the areas in which it actually occurs, not merely the areas in which it is formally permitted. . To the extent the district court suggested otherwise, in finding that the Service properly "considered the direct and indirect effects of plan alternatives to the Study Area” using " ‘theoretical approaches or research methods,’ ” Mont. Wilderness Ass’n, 658 F.Supp.2d at 1256 n. 4 (quoting 40 C.F.R. § 1502.22(b)(4)), we disagree. Section 1502.22(b)(4) requires that an agency unable to fill a gap in the relevant data "deal with uncertainties” that result from the missing data by evaluating potential impacts using theoretical means. San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016, 1033 (9th Cir.2006). Here, although the Service analyzed the direct and indirect effects of travel plan alternatives generally, it did not attempt to use theoretical approaches or research methods to deal with uncertainties stemming from the gaps in the available volume of use data because it erroneously concluded that such data were irrelevant altogether.

Russell Country Sportsmen v. United States Forest Service

OPINION FISHER, Circuit Judge: We decide whether the United States Forest Service’s (Service) 2007 Travel Management Plan for parts of the Lewis and Clark National Forest, including the Middle Fork Judith Wilderness Study Area, violates the Montana Wilderness Study Act of 1977 (Study Act) and the National Environmental Policy Act (NEPA). We hold that nothing in the Study Act, which requires the Service to manage a wilderness study area so as to “maintain” its wilderness character as it existed in 1977, prohibits the Service from exercising its discretion to enhance the wilderness character of a study area. We also hold that NEPA does not require the Service to prepare a supplemental draft environmental impact statement (EIS) where, as here, the final decision makes only minor changes and is qualitatively within the spectrum of the alternatives discussed in the draft EIS. We accordingly reverse the judgment of the district court. Background In 2007, the Service issued a revised Travel Management Plan governing recreational motorized and nonmotorized use on 1.1 million acres of the Lewis and Clark National Forest. The area covered by the travel plan encompasses the Little Belt Mountains, the Castle Mountains, the north half of the Crazy Mountains and the 81,000-acre Middle Fork Judith Wilderness Study Area. The Service’s draft environmental impact statement (DEIS), released in July 2006, considered five summer alternatives and three winter alternatives. The most restrictive summer alternative would have allowed motorized use on 1287 miles of roads and trails. The least restrictive summer alternative would have allowed motorized use on 2262 miles of roads and trails. Each of the alternatives also would have permitted motorized vehicles within 300 feet of a road or trail for parking (i.e., accessing dispersed campsites), passing or turning around. The Service’s final plan, issued in October 2007, adopted summer alternative 5, with several modifications, and winter alternative 2. Overall, the plan designated 1366 miles for motorized recreational use, including 870 miles of routes open year-round and another 496 miles open seasonally. The plan also designated about 304 miles for groomed over-snow motorized travel and permitted over-snow, cross-country (i.e., off-road, off-trail) motorized travel on 483,000 acres between December 1 and May 15. The final plan dropped the 300-foot dispersed camping rule and instead allowed “parking, passing, or turning around ... within the length of the vehicle and attached trailer” (about 70 feet), subject to certain conditions designed to ensure safety and protect vegetation, soil and water. The modified dispersed camping rule also permitted off-road travel beyond the “vehicle length plus trailer” limit to access certain established campsites. Within the Middle Fork Judith Wilderness Study Area, the plan “emphasize[d] non-motorized recreation,” reducing routes designated for motorized recreational use from 112 miles under the previous travel plan to 38 miles under the new plan. The Service’s record of decision explained this choice as follows: When Congress passed the Montana Wilderness Study Act, it instructed the agency to maintain the wilderness character of the Middle Fork of the Judith Wilderness Study Act Area (WSA). Managing this area primarily for non-motorized use best accomplishes this goal until Congress decides whether or not the area should be designated as wilderness. Presently there is an abundance of motorized use in this area, some of which is necessary to access private land in the middle of the WSA. To balance the need to provide access to private land, the special “highlight of the summer” trip some of the trails provide for motorized users, with the need to maintain wilderness character, I have eliminated motorized use except for one connected complex of trails (approximately 12 miles) and the road system that accesses the private land. Nine recreational groups having an interest in motorized recreation subsequently filed suit against the Service, seeking to invalidate the travel plan as violating NEPA and the Study Act. The Montana Wilderness Association intervened as a defendant, and the parties filed cross-motions for summary judgment. The district court granted the recreational groups’ motion for summary judgment and denied the Service’s cross-motion. The court concluded that the Service failed to comply with NEPA by adopting a final decision that “fell outside the range of alternatives [considered in the DEIS] and made numerous, significant changes to the DEIS” without preparing a supplemental environmental impact statement as required by 40 C.F.R. § 1502.9(c), which states that “[a]gencies ... [s]hall prepare supplements to either draft or final environmental impact statements if ... [t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns.” The court concluded that the final decision departed from the range of alternatives discussed in the DEIS in four areas: 1. “The chosen decision reduced total mileage open for motorized travel by nearly thirty percent beyond the most restrictive DEIS alternative.” 2. The final decision “closed several trails not specified for closure in the DEIS.” 3. The final decision “reduced the snowmobile season short of any DEIS alternative.” 4. The final decision “scrapped a 300-foot-off-road-travel rule for a much more restrictive ‘vehicle plus trailer length’ area.” The court also granted summary judgment to the recreational groups on their Study Act claim. The court concluded that the Study Act, which directs the Service to administer wilderness study areas “so as to maintain their presently existing wilderness character,” Pub.L. No. 95-150, § 3(a), 91 Stat. 1243 (1977), requires the Service to preserve the wilderness character of a wilderness study area against decline, but prohibits the Service from enhancing the wilderness character of the area. The court said that the Study Act: directed the Forest [Service] to maintain the wilderness character of Wilderness Study Areas as it existed in 1977. To the extent the wilderness character was there in 1977, it was to be maintained. To the extent the wilderness character was lacking in 1977, it was not to be imposed. Noting that the final travel plan reduced overall motorized use in the study area from 112 miles to 38 miles, the court concluded that the travel plan “eliminate[d] roughly two-thirds of the previously-available motorized routes” — which the court construed as an impermissible “attempt at enhancement or creation of wilderness character” in the study area. The court entered judgment setting aside the travel plan in certain respects and remanding to the Service for further action. The Service and the Montana Wilderness Association separately appealed. We consolidated the two appeals, and, after hearing argument, referred the matter for possible mediation. The parties elected not to pursue mediation. The matter is therefore ripe for decision. Standard of Review We review de novo a district court’s grant or denial of summary judgment. LaVine v. Blaine Sch. Dist., 257 F.3d 981, 987 (9th Cir.2001). The Study Act and NEPA do not contain their own provisions for judicial review. Accordingly, our review of the Service’s decision under these statutes is governed by the judicial review provisions of the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-06. See City of Sausalito v. O'Neill, 386 F.3d 1186, 1205-06 (9th Cir.2004). Under the APA, agency decisions may be set aside if “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Discussion I. Montana Wilderness Study Act The Study Act requires the Service to administer wilderness study areas “so as to maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System.” Study Act § 3(a). This provision imposes two requirements. First, the Service must administer study areas so as to maintain their wilderness character as it existed in 1977. Second, the Service must administer the areas so as to maintain their potential for designation as wilderness areas — i.e., as part of the National Wilderness Preservation System. The dispute here concerns the first of these requirements. The recreational groups urge, and the district court concluded, that the obligation to administer study areas so as to “maintain their presently existing wilderness character” prohibits the Service not only from degrading the wilderness character of a study area, but also from enhancing it. They argue that the Service improperly attempted to enhance the study area’s wilderness character by reducing overall motorized use miles in the study area beyond 1977 levels. The Service disputes that interpretation, arguing that the Study Act “creates a floor, not a ceiling, for environmental protection.” The Service is correct. The Study Act plainly mandates preservation of a base level, but does not prohibit enhancing the area’s wilderness character above that level. Webster’s defines “maintain” as “to keep in a state of repair, efficiency, or validity” and as to “preserve from failure or decline.” Webster’s Third New International Dictionary 1362 (2002). Other dictionaries confirm this meaning. See Owasso Indep. Sch. Dish No. 1-011 v. Falvo, 534 U.S. 426, 433, 122 S.Ct. 934, 151 L.Ed.2d 896 (2002) (“The ordinary meaning of the word ‘maintain’ is ‘to keep in existence or continuance; preserve; retain.’ ” (quoting Random House Dictionary of the English Language 1160 (2d ed.1987))); American Heritage Dictionary of the English Language 1055 (4th ed.2000) (defining “maintain” as “To keep up or carry on; continue,” and as “To keep in an existing state; preserve or retain”); Oxford English Dictionary (online version June 2011) (defining “maintain” to include “To keep up, preserve, cause to continue in being (a state of things, a condition, an activity, etc.); to keep vigorous, effective, or unimpaired; to guard from loss or deterioration.”). In sum, the Study Act simply requires the Service to preserve a study area’s wilderness character against decline. Enhancement of wilderness character is fully consistent with the Study Act’s mandate, although the Study Act does not require it. This meaning is confirmed by the purposes of the Study Act. One of the Act’s express aims is to preserve a study area’s “wilderness character” throughout the study period. The Study Act does not define the term “wilderness character,” but the parties agree that it borrows a definition of wilderness from the Wilderness Act, Pub.L. No. 88-577, 78 Stat. 890 (1964) (codified at 16 U.S.C. § 1131(c)). The Wilderness Act defines “wilderness as an area that has, among other things, ‘outstanding opportunities for solitude or a primitive and unconfined type of recreation.’ ” Greater Yellowstone Coal. v. Timchak, No. CV-06-04-E-BLW, 2006 WL 3386731, at *2 (D.Idaho Nov. 21, 2006) (applying the Wyoming Wilderness Act of 1984, which contains language identical to the Study Act) (quoting 16 U.S.C. § 1131(c)). The Study Act accordingly “requires the Forest Service to administer [wilderness study areas] to maintain” overall wilderness character, including “opportunities for solitude or primitive and confined recreation[,] that existed there in [1977],” until the area is either designated as a wilderness area or removed from the Study Act. Id. at *3; see also id. at *3-*6 (overturning the Service’s decision permitting increased heli-skiing in the Palisades Wilderness Study Area where the Service failed to show that increased helicopter use would not diminish current users’ available opportunities for solitude compared to 1984 levels). The Service can accomplish this purpose — providing current users with opportunities for solitude comparable to those that existed in 1977 — when the Service either preserves against decline or enhances wilderness character. The Study Act’s other express aim is to maintain a study area’s “potential for inclusion in the National Wilderness Preservation System.” Study Act § 3(a). Once again, the Service acts consistently with this objective when it either preserves against decline or enhances the wilderness protection of the area. Preserving motorized recreational uses, by contrast, does nothing to maintain the area’s potential for wilderness designation. The Study Act’s legislative history also shows that enhancement is permitted. The Senate report explains that the Study Act “directs the Secretary to administer the proposed study areas so as not to diminish their presently existing wilderness character and potential.” S.Rep. No. 95-163, at 1 (1977) (emphasis added); see also id. at 2 (stating that the study areas are “to be managed by the Secretary so as not to diminish their presently existing wilderness character and potential” (emphasis added)). The choice of the word “diminish” reveals that Congress intended to protect wilderness character from decline rather than to prevent enhancement. The recreational groups point out, correctly, that Congress appears to have contemplated that existing recreational activities, including motorized uses, could continue during the study period, so long as those activities did not diminish wilderness character, undermine a study area’s potential for wilderness designation or conflict with the Service’s overall forest management objectives. See S.Rep. No. 95-163, at 2 (1977) (explaining that the “language regarding wilderness character and potential was added by the committee ... to assure continued enjoyment of the areas by those recreationists whose pursuits will not, in the judgment of the Secretary, preclude potential wilderness designation for the areas”); H.R.Rep. No. 95-620 (1977), at 4 (“The use of off-road vehicles, while generally prohibited in designated wilderness areas, is entirely appropriate in wilderness study areas .... ”). Congress did not, however, mandate that motorized recreational levels be maintained. And Congress made clear that the Service was free to reduce motorized use levels when carrying out its general obligations to manage national forests — as it has done here. See id. (“Nothing in [the Study Act] will prohibit the use of off-road vehicles, unless the normal Forest Service planning process and travel planning process, which applies to all national forest lands, determines off-road vehicle use to be inappropriate in a given area.”). We therefore hold that nothing in the Study Act prohibits the Service from enhancing the wilderness character of a wilderness study area. The district court’s decision that the travel plan violates the Study Act is accordingly reversed. II. National Environmental Policy Act The district court also concluded that the Service violated NEPA by adopting restrictions on motorized use that “fell outside the range of alternatives” considered in the DEIS and by making “numerous, significant changes to the DEIS” without preparing a supplemental draft environmental impact statement, as required by 40 C.F.R. § 1502.9(c)(1)(i). The Service challenges that ruling on appeal. We ordinarily review the Service’s decision not to prepare a supplemental EIS under the arbitrary or capricious standard. Cf. Friends of the Clearwater v. Dombeck, 222 F.3d 552, 556-57 (9th Cir.2000) (applying 40 C.F.R. § 1502.9(e)(1)(ii)). We reverse. NEPA requires the government to prepare an EIS for any proposed federal action “significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). The EIS must address, among other things, “the environmental impact of the proposed action” and “any adverse environmental effects which cannot be avoided should the proposal be implemented.” Id. § 4332(2)(C)(i)-(ii). Effects that may be relevant to the EIS include ecological impacts, such as “effects on natural resources and on the components, structures, and functioning of affected ecosystems,” as well as the “aesthetic, historic, cultural, economic, social, or health” effects of the proposed action. 40 C.F.R. § 1508.8(b). The EIS must “[r]igorously explore and objectively evaluate all reasonable alternatives.” Id. § 1502.14(a). An agency can modify a proposed action in light of public comments received in response to a draft EIS. See id. § 1503.4(a). “[Ajgencies must have some flexibility to modify alternatives canvassed in the draft EIS to reflect public input.” California v. Block, 690 F.2d 753, 771 (9th Cir.1982). If the final action departs substantially from the alternatives described in the draft EIS, however, a supplemental draft EIS is required: “Agencies ... [sjhall prepare supplements to either draft or final environmental impact statements if [t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns.... ” 40 C.F.R. § 1502.9(c) (emphasis added). Section 1502.9(c) does not define the terms “substantial changes” and “relevant to environmental concerns.” The Council for Environmental Quality (CEQ), however, has published guidance on when changes to a proposed action will require preparation of a supplemental EIS. The CEQ guidance provides that supplementation is not required when two requirements are satisfied: (1) the new alternative is a “minor variation of one of the alternatives discussed in the draft EIS,” and (2) the new alternative is “qualitatively within the spectrum of alternatives that were discussed in the draft [EIS].” Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations [hereinafter “Forty Questions”], 46 Fed.Reg. 18,026, 18,035 (Mar. 23, 1981) (emphasis added). The First, Eighth and Tenth Circuits have adopted this CEQ guidance as a framework for applying § 1502.9(c)(1)(i). See New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 705 & n. 25 (10th Cir.2009); In re Operation of Missouri River Sys. Litig., 516 F.3d 688, 693 (8th Cir.2008); Dubois v. U.S. Dep’t of Agric., 102 F.3d 1273, 1292 (1st Cir.1996). We now join them in doing so. Here, the district court pointed to four changes in the Service’s decision that the court concluded required supplementation of the DEIS. We address each in turn. A. Overall Motorized Use Mileage The district court concluded that the Service was required to prepare a supplemental draft EIS because the final decision “reduced total mileage open for motorized travel by nearly thirty percent beyond the most restrictive DEIS alternative.” According to the court, the most restrictive alternative considered in the DEIS (summer alternative 4) permitted motorized use on 1951 miles, and the least restrictive DEIS alternative (summer alternative 1) permitted motorized use on 3036 miles. The court found that the final decision, which allowed motorized use on just 1366 miles, fell outside the range of alternatives considered in the DEIS, summarizing the figures as follows: Total Miles Designated by Vehicle Type Passenger hxk. ATV Motorcycle Total Summer 1 1523 514 260 739 3036 Summer 4 955 397 262 337 1951 Decision 741 178 222 225 1366 The Service argues that the DEIS total mileage figures relied on by the district court are inappropriate for comparison to the 1366 mileage figure for the final plan because they double count route miles that are open to several motorized uses. As we have noted, under the travel plan “lower-level” vehicles can use routes designated for “higher-level” vehicles. Thus, for example, a route that is open to both motorcycle and ATV use is counted twice in the mileage totals relied on by the district court. The Service has offered numbers that avoid double counting, and these numbers show that the 1366 total motorized route miles permitted in the final decision fall within the range of alternatives discussed in the DEIS: Total Miles Designated for Motorized Use Summer 1 2262 Summer 3 1774 Summer 4 1287 Summer 5 1441 Decision 1366 The recreational groups offer no credible reason to doubt either the accuracy of the Service’s mileage figures, which are supported by the administrative record, or the Service’s assertion that the numbers relied on by the district court are inappropriate for comparison to the 1366 figure because they reflect double counting. We therefore credit the Service’s mileage figures. As a consequence, the overall motorized use miles authorized by the travel plan are within the range of alternatives included in the DEIS. The district court’s finding of a NEPA violation therefore inadvertently relied on a mistaken premise. B. Trail Closures Not Specified in the DEIS The district court faulted the Service for not preparing a supplemental draft EIS because the final decision included several trail closures that were not included in any of the alternatives discussed in the DEIS. Neither the district court nor the recreational groups, however, explain why these modifications were “substantial changes ... relevant to environmental concerns.” 40 C.F.R. § 1502.9(c)(l)(i). They appear to have been “minor variation[s]” that were “qualitatively within the spectrum of alternatives that were discussed in the draft [EIS].” Forty Questions, supra, 46 Fed.Reg. at 18,035. Accordingly, no supplemental draft EIS was required. C. Modification of the End Date of the Snowmobile Season The district court concluded that the Service was required to prepare a supplemental draft EIS because the Service changed the end of the snowmobile season from May 15 in the DEIS to May 1 in the final decision. The Service restored the May 15 date during the appeals phase of the administrative proceedings. Any continued objection to this change is therefore moot. D. Modification of the Dispersed Camping Rule Finally, the district court concluded that the Service violated NEPA because the final decision included a modified dispersed camping rule that was not discussed in a supplemental draft EIS. The DEIS proposed permitting off-road driving in a 300-foot corridor on either side of roads and trails for parking, passing and turning around. In the final decision, the Service dropped that proposal in favor of a plan allowing “parking, passing, or turning around ... within the length of the vehicle and attached trailer,” subject to certain conditions. The plan also permitted off-road travel beyond the “vehicle length plus trailer” limit to access certain established dispersed campsites. The Service explained its decision as follows: Several respondents were concerned about the possibility of a 600-foot wide roaded corridor resulting from the 300 foot dispersed camping rule. I did not find specific information in the Final EIS (FEIS) that indicates this was happening on the ground, however, in too many cases, users are developing roads or trails out of dispersed camp sites and extending the area covered by the 300 foot rule. Once a trail or road is created, another user may travel on that newly created road or trail and camp 300 feet beyond the newly developed road or trail, allowing the road or trail to continue to grow. My decision will reduce the creation of new trails out of dispersed camp sites by prohibiting travel off designated routes to a campsite, while still allowing access to continue to the majority of existing dispersed campsites. The Service says the district court’s decision requiring supplementation was wrong for two reasons. We reject the Service’s first argument but agree with its second. The Service argues that it was not required to prepare a supplemental draft EIS because the changes to the dispersed camping rule would have only lessened environmental impacts in comparison to the alternatives discussed in the DEIS. The Service contends that a change in a proposed action that only lessens environmental impacts is, as a categorical matter, not a change that is “relevant to environmental concerns” for purposes of § 1502.9(c)(l)(i). We agree with the Service up to a point. That a modified alternative only lessens environmental impacts may tend to show that the new alternative is a “minor variation of one of the alternatives discussed in the draft EIS” and is “qualitatively within the spectrum of alternatives that were discussed in the draft [EIS].” Forty Questions, supra, 46 Fed.Reg. at 18,035. See, e.g., Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir.2008) (“When the change to the proposed action is a ‘minimizing measure,’ ... the agency ‘is not automatically required to redo the entire environmental analysis’ ... because a minimizing measure’s effects on the environment will usually fall within the scope of the original NEPA analysis” (quoting Sierra Club v. U.S. Army Corps of Eng’rs, 295 F.3d 1209, 1221 (11th Cir.2002))); Friends of the Bow v. Thompson, 124 F.3d 1210, 1218-19 (10th Cir.1997) (“Although we are not prepared to say that a reduction in the environmental impact of an action can never trigger a requirement to prepare a supplemental [environmental assessment], we believe that a reduction in environmental impact is less likely to be considered a substantial change relevant to environmental concerns than would be an increase in the environmental impact.”). A new alternative, however, may lessen environmental impacts and yet fall outside the range of alternatives discussed in a draft EIS. Supplementation may be required, for example, when modifications to a proposed action, although lessening environmental impacts, also alter the overall cost-benefit analysis of the proposed action. In Massachusetts v. Watt, 716 F.2d 946, 948-49 (1st Cir.1983) (Breyer, J.), for instance, the court required preparation of a supplemental analysis when the government lowered its estimate of the benefits expected to be gained from granting oil drilling leases in the North Atlantic Ocean. The court reasoned that additional analysis was required because the adverse environmental consequences of the action — although diminished — might no longer be justified in light of the drastically reduced expectation of economic benefit. See id. The Service relies on the Third Circuit’s decision in South Trenton Residents Against 29 v. Federal Highway Administration, 176 F.3d 658, 664-66 (3d Cir.1999). That case, however, involved a Department of Transportation (DOT) regulation that expressly omits a duty to prepare a supplemental EIS when a new alternative lessens environmental impacts. The DOT regulation states that “a supplemental EIS will not be necessary where ... [t]he changes to the proposed action ... result in a lessening of adverse environmental impacts evaluated in the EIS without causing other environmental impacts that are significant and were not evaluated in the EIS.” 23 C.F.R. § 771.130(b). Section 1502.9(c) contains no similar language. The government’s reliance on South Trenton Residents is therefore misplaced. Although we disagree with the Service that modifications that lessen impacts never require supplementation, we nonetheless agree that the modifications to the dispersed camping rule here did not require preparation of a supplemental draft EIS. We hold that the final decision was a “minor variation” and “qualitatively within the spectrum of alternatives” discussed in the DEIS. Forty Questions, supra, 46 Fed. Reg. at 18,035. We reach this conclusion for several reasons. First, the dispersed camping rule is a secondary rather than a primary aspect of the overall travel plan. Second, the modifications are relatively minor — scaling back the 300-foot limit to approximately 70 feet. Third, there is very little reason to believe the modified travel plan will have environmental impacts that the agency has not already considered. The Service modified the rule to eliminate the risk that users would develop roads or trails out of dispersed camp sites. The change eliminates that adverse impact, leaving only the impacts caused by parking, passing and turning around that have already been fully considered. Although the modified dispersed camping rule has the potential to concentrate motorized travel in a smaller area, which could theoretically pose different or additional impacts relative to the 300-foot rule, there does not appear to have been much actual use beyond the 70-foot perimeter even under the original rule. Finally, there is no indication that the modifications alter the overall cost-benefit analysis of the proposed action. The recreational groups argue that supplementation is required in light of the Tenth and First Circuits’ decisions in New Mexico ex rel. Richardson v. Bureau of Land Mgmt. (“BLM”), 565 F.3d 683 (10th Cir.2009), and Dubois v. U.S. Department of Agriculture, 102 F.3d 1273 (1st Cir. 1996). BLM and Dubois, however, involved substantial modifications that went to the heart of the proposed action and posed new and previously unconsidered environmental questions. They are therefore readily distinguishable from the dispersed camping modifications adopted here. Conclusion We hold that the Service’s 2007 travel plan conforms to the Study Act and NEPA. The judgment of the district court is accordingly reversed. REVERSED. . The recreational groups, plaintiffs-appellees in this case, contend that the DEIS alternatives would have allowed motorized use on between 1951 and 3036 miles of roads and trails. As we explain below, however, the correct range is 1287 to 2262 miles. . The Service presented the plan in a record of decision and a final EIS. . The 1366 miles include 37 miles yearlong and 188 miles seasonally for motorcycles; 121 miles yearlong and 101 miles seasonally for all-terrain vehicles (ATVs); 128 miles yearlong and 50 miles seasonally for four-wheel drive vehicles; and 584 miles yearlong and 157 miles seasonally for full-size passenger vehicles. "Lower-level” vehicles can use routes designated for "higher-level” vehicles. Thus, for example, motorcycles, which are the lowest-level motorized vehicles, can use all 1366 miles of routes, whereas four-wheel drive vehicles can use only the routes designated for four-wheel drive and full-size passenger vehicles. . This ruling was based on the mileage figures offered by the recreational groups. As noted, the recreational groups contended that the DEIS alternatives would have allowed motorized use on between 1951 and 3036 miles of routes, which placed the 1366 miles included in the final travel plan outside the range of alternatives considered in the DEIS. The motorized use authorized by the DEIS alternatives actually ranged from 1287 to 2262 miles, however. . Under the alternatives discussed in the DEIS, the snowmobile season would have ended on May 15, whereas in the final travel plan the snowmobile season would have ended on May 1. During the appeals phase of the administrative proceedings, however, the Service restored May 15 as the end of the snowmobile season. It appears that the district court did not take this last revision into account in its analysis. . We recognize that the word "maintain” is sometimes used to mean holding in a constant state. An engineer calculating a car’s gas mileage, for example, might instruct an assistant to maintain the car’s speed at 55 miles per hour, meaning that the assistant should keep the car moving at exactly 55 miles per hour, no more and no less. Ordinarily, however, the word is used to communicate the idea of preserving something against decline, not preventing enhancement. A student who is told that she must maintain a B average to retain a scholarship, for instance, will not lose her scholarship if her grade point average rises to 4.0. A baseball player whose contract provides for payment of a bonus if he maintains a .300 batting average will still get the bonus if he bats .350. . Section 1131(c) defines wilderness as follows: A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean in this chapter an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value. 16 U.S.C. § 1131(c). . The Wyoming Wilderness Act of 1984, Pub.L. No. 98-550, § 301(c), 98 Stat. 2807, requires the Secretary of Agriculture to administer wilderness study areas “so as to maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System.” . Congress thus drew a distinction between wilderness areas on the one hand and wilderness study areas on the other. In wilderness areas, roads and use of motorized vehicles are generally prohibited. See 16 U.S.C. § 1133(c). In study areas, by comparison, motorized uses are not prohibited; but neither are they afforded statutory protection. Furthermore, the Study Act may require the Service to curtail motorized uses when necessary to maintain a study area’s wilderness character or potential for designation. . The Service manages national forests under the National Forest Management Act of 1976, which requires the Secretary of Agriculture to "develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System.” 16 U.S.C. § 1604(a). The Secretary must assure that those plans "provide for multiple use ... in accordance with the Multiple-Use Sustained-Yield Act of 1960,” including "coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.” Id. § 1604(e)(1). The discretion afforded to the Service under these statutes is, of course, qualified by the duties imposed under the Study Act. . Because we hold that the Study Act permits the Service to enhance wilderness character, we do not reach the Service’s alternative argument that the travel plan at issue here did not enhance wilderness character. . In Block, we focused this inquiry on "(1) whether the alternative finally selected by the Forest Service was within the range of alternatives the public could have reasonably anticipated the Forest Service to be considering, and (2) whether the public's comments on the draft EIS alternatives also apply to the chosen alternative and inform the Forest Service meaningfully of the public’s attitudes toward the chosen alternative.” 690 F.2d at 772. Thus, in applying the two-part Forty Questions framework, we consider whether the commenting public would regard the change as a minor variation or find the new alternative to be qualitatively within the spectrum of alternatives previously considered. . The recreational groups correctly point out that the Service raised this argument for the first time in its supplemental summary judgment briefing rather than in its statement of genuine issues. Ordinarily, we would not permit a party to dispute factual issues conceded in a statement of genuine issues. It makes no sense, however, to affirm a NEPA violation and set aside a travel plan that serves the public interest on account of a misunderstanding about the administrative record. Cf. Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 554 (9th Cir.2004) (“We normally do not reach claims raised for the first time on appeal, but we may exercise discretion to do so where manifest injustice would otherwise result.”). We accordingly rely on the correct numbers, without approving of the Service’s inexplicable failure to raise this argument sooner. . We need not decide whether the modifications to the dispersed camping rule only lessened environmental impacts. See Michael S. Freeman & Meg Parish, Supplemental NEPA Analyses: Triggers and. Requirements, Rocky Mountain Mineral Law Foundation, Special Institute on the National Environmental Policy Act (2010), at n. 34 (stating that a court should be "wary of simplistic characterizations of a change as reducing the impacts of a proposal”). Because we reject the Service’s argument on another ground, we have no occasion to address that question. . In BLM, the Tenth Circuit held that the government was required to prepare a supplemental analysis when it substantially modified a proposed action for oil and gas exploration on New Mexico grasslands. The original proposal would have allowed exploration within 492 feet of roads, whereas the revised proposal permitted exploration anywhere within the project area, but only on up to 5 percent of the total surface land area. See BLM, 565 F.3d at 692. The court found that the modified plan could result in “wildly different impacts on plants and wildlife” in comparison to the original plan. Id. at 706. The modified plan “was qualitatively different and well outside the spectrum of anything BLM considered in the Draft EIS.” Id. at 707. The government was thus “required to issue a supplement analyzing the impacts of that alternative under 40 C.F.R. § 1502.9(c)(l)(i).” Id. In Dubois, the Service adopted a modified proposal for expansion of a skiing facility within a national forest in New Hampshire. The original proposal would have expanded the facility to a new part of the forest, whereas the modified proposal would have squeezed much of its expansion into the existing permit area. See Dubois, 102 F.3d at 1292. The modified proposal envisioned a 28,500-square-foot base lodge facility within the existing permit area; proposed developing ski trails, access roads and lifts on land that the previous alternative would have left as a woodland buffer; and would have widened existing trails, eliminating existing buffers separating trails. See id. The court held that these were “substantial changes from the previously-discussed alternatives, not mere modifications 'within the spectrum’ of those prior alternatives.” Id. The modified configuration posed "wholly new problems” and "environmental impacts that the Forest Service has not yet considered.” Id. at 1293. Supplementation was therefore required.

Wilderness Watch, Inc. v. U.S. Fish & Wildlife Service

Opinion by Judge GRABER; Dissent by Judge Bybee. OPINION GRABER, Circuit Judge: The Kofa National Wildlife Refuge and Wilderness in southwest Arizona contains a desert ecosystem that is home to, among other species, bighorn sheep. After an unexpected decline in the population of the sheep, the United States Fish and Wildlife Service (“Service”) built two water structures (the Yaqui and McPherson tanks) within the wilderness area. Plaintiffs Wilderness Watch, Inc., Arizona Wilderness Coalition, Grand Canyon Wildlands Council, Western Watersheds Project, and Grand Canyon Chapter of the Sierra Club brought suit against the Service. Plaintiffs allege that the Service’s actions violated the express prohibition on the development of structures in the Wilderness Act, 16 U.S.C. §§ 1131-1133. The district court granted summary judgment to the Service, and Plaintiffs timely appeal. Reviewing de novo, High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 638 (9th Cir.2004), we reverse and remand. FACTUAL AND PROCEDURAL HISTORY Situated between two mountain ranges, the Kofa Refuge and Wilderness consists of more than 600,000 acres of land in the Sonoran Desert in southwest Arizona. The area contains steep slopes, sparse vegetation, poor soil, and an extremely dry ecosystem. Summer temperatures can reach 120 degrees. The average rainfall measured at one weather station in the Kofa Mountains is about seven inches a year. Most of the rainfall occurs during one month, followed by many hot summer months with no measurable precipitation. The vegetation is dominated by saguaro, creosote, ironwood, paloverde, and mesquite. Kofa is home to 45 mammal species, including the desert bighorn sheep and muledeer, and 47 species of reptiles. President Franklin D. Roosevelt established the Kofa Game Range by executive order in 1939. The President’s order expressly designated the area for the “conservation and development of natural wildlife resources,” Exec. Order No. 8039, 4 Fed.Reg. 438 (Jan. 25, 1939), and it was understood that preservation of bighorn sheep was one of the principal reasons for establishing the refuge. See David Brown, Early History, in The Desert Bighorn Sheep in Arizona 5-7 (Raymond M. Lee, ed., Ariz. Game & Fish Dep’t 1993). Following the executive order, the Fish and Wildlife Service and the Bureau of Land Management managed the land until 1976, when the Service assumed sole jurisdiction and the reserve was renamed the Kofa National Wildlife Refuge. See An Act to amend the National Wildlife Refuge System Administration Act of 1966, Pub.L. No. 94-223, 90 Stat. 199. As a wildlife refuge, the area is subject to the provisions of the Refuge Act. Among other things, the Refuge Act requires the Secretary of the Interior to “provide for the conservation of ... wildlife,” “ensure that the biological integrity, diversity, and environmental health of the System are maintained,” and “assist in the maintenance of -adequate water quantity and water quality to fulfill the mission of the System and the purposes of each refuge.” 16 U.S.C. § 668dd(a)(4)(A), (B), (F). In 1990, Congress designated about 82% of the Kofa National Wildlife Refuge as wilderness, and it became the Kofa National Wildlife Refuge and Wilderness. Arizona Desert Wilderness Act of 1990, Pub.L. No. 101-628, § 301(a)(3), 104 Stat. 4469. In doing so, Congress subjected the area to the provisions of the Wilderness Act. Under the Wilderness Act, the Service is “responsible for preserving the wilderness character of the area,” but it also must “administer such area for such other purposes for which it may have been established as also to preserve its wilderness character.” 16 U.S.C. § 1133(b). Congress specifically provided that “wilderness areas shall be devoted to the public purposes of recreational, scenic, scientific, educational, conservation, and historical use.” Id. “[Ejxcept as necessary to meet minimum requirements for the administration of the area,” the Wilderness Act prohibits any “temporary road, ... use of motor vehicles, motorized equipment or motorboats, ... landing of aircraft, ... mechanical transport, and ... structure or installation” within a wilderness area. Id. § 1133(c). The Act declares that the purposes of the Wilderness Act are “within and supplemental to the purposes for which ... [the] national wildlife refuge systems are established and administered.” Id. § 1133(a). Thus, in managing the Kofa Wilderness, the Service must comply with both the Wilderness Act and the Refuge Act. Since the 1950s, the State of Arizona, non-profit organizations, and the federal government developed water sources such as catchments, wells, and tanks to augment the availability of water for the bighorn sheep that inhabit the area. There are now more than 100 water sources in the area. During the summer months, the distribution of bighorn sheep is restricted by water availability, and most sheep can be found within a two-mile radius of water sources. With the cooperation of the Arizona Game and Fish Department and the Arizona Desert Bighorn Sheep Society, refuge personnel build, maintain, and monitor the water sources. During times of “extensive drought,” refuge personnel transport water to the structures. Wildlife managers believe that these water sources have been instrumental in helping to restore the population of bighorn sheep. A. The Management Plan for the Refuge After Congress designated most of the Kofa Refuge as a wilderness area in 1990, and in an attempt to coordinate the dual purposes of the Kofa Wilderness and Refuge, the Service and the Bureau of Land Management (“BLM”) issued a management plan. Kofa National Wildlife Refuge and Wilderness Interagency Management Plan (1997) (“Management Plan”). The plan, which received public review and comment, was intended to ensure that future management decisions and techniques concerning the Kofa Wilderness were compatible with the Wilderness and Refuge Acts. The plan recognized the purpose of the Kofa Wilderness in preserving bighorn sheep: Historically, Kofa ... ha[s] played a central wildlife and wildlands conservation role in western Arizona. To counter dwindling populations of desert bighorn sheep in the earlier part of the century, a management theme relating to the recovery of the species had become necessary beyond the establishment of legal protection for the species under the Arizona State Game code. Thus, a clear and dominant strategy for the management of these historically “rocky, waterless sierras ...” was designed specifically for the recovery of bighorn sheep populations. Management Plan at 2 (second ellipsis in original) (footnote omitted). The plan stated that the Service and the BLM would “continue important efforts on behalf of the bighorn sheep.” Id. at 3. The plan acknowledged that, although the wilderness designation of the land would “not chang[e] the purposes of these areas or the importance of current activities,” the designation would “call for the consideration of these activities within the larger ecological contexts and within national wilderness goals inherent in the Wilderness Act of 1964.” Id. The plan stated that “[t]he needs of the species and the requirements of the Act are not necessarily in conflict. In fact, the habitat management work done to benefit bighorn sheep, including water development, could have a positive influence on the natural cycles of predation and succession for a diversity of life in the desert without detraction of wilderness attributes and values.” Id. at 39^10. After espousing a broad goal to reconcile the Wilderness and Refuge Acts in the Kofa Wilderness, the plan discussed comprehensive planning objectives for the area. The plan addressed many issues, including “protection of wilderness values,” “wildlife and habitat management,” “law enforcement and emergency services,” and “Native American religious access.” Id. at 5-7 (some capitalization omitted). With respect to wildlife protection, the plan explained that “the Service is responsible to carry out a dual, but nonetheless interrelated, role of managing for bighorn sheep within the context of wilderness.” Id. at 37. According to the plan, the Service would use “minimum tools” in order to “maintain! ] an optimal desert bighorn sheep population.” Id. at 53. B. Decline in Population of Bighorn Sheep, and the Service’s Response As the Management Plan described, the Kofa Wilderness historically has been home to the desert bighorn sheep. In recent decades, the estimated population of the bighorn sheep in the Kofa Wilderness and Refuge remained relatively stable, with fluctuations between 600 and 800 sheep. Surveys done in 1991 and 1997 (the period shortly after the refuge was first designated as a wilderness area and while the Service was preparing the Management Plan) revealed that the population remained relatively stable at around 700 sheep, and the Service determined that the carrying capacity of the area was about 800 sheep. In 2000, the estimated population registered on the high end of the range, at 813 sheep. Due to the population’s stability, the Service and other government agencies have permitted certain activities that generally are viewed as inconsistent with population conservation. For example, since 1979, the area has served as a primary source of sheep for translocation programs to re-establish populations of bighorn sheep in Arizona, Colorado, New Mexico, and Texas. For decades, the Service translocated sheep from the refuge on a nearly annual basis. The area also has been a hunting ground for bighorn sheep, and the Service has issued a limited number of hunting licenses (between 9 and 17) each year. The Service also permits hiking in known lambing areas, despite the sheep’s strong aversion to human disturbance. One factor historically benefitting the bighorn sheep within the Kofa Refuge was the absence of predators such as mountain lions. Studies conducted in the 1990s found no evidence of mountain-lion presence within the Kofa Refuge. In 2003, the estimated population of bighorn sheep in the refuge was 623. Although this marked a decline since 2000, the estimated population nevertheless remained comfortably within the acceptable range of 600 to 800 sheep. Unconcerned, the Service continued issuing hunting permits, allowed hiking, and, encouraged by abundant rainfall in 2005, translocated 31 sheep that year. In 2006, however, surveys indicated that the population of bighorn sheep had suffered an unexpected decline — to 390 sheep, or approximately 30% to 50% fewer sheep than in recent decades. In response, the Service and the Arizona Game and Fish Department prepared a document in 2007 titled “Investigative Report and Recommendations for the Kofa Bighorn Sheep Herd” (“Investigative Report”). The report came to no concrete conclusions concerning the recent decline in population. Instead, the comprehensive document examined the wide range of mortality factors of bighorn sheep and, for each factor, it presented prescriptive strategies intended to aid successful recovery of their population. The most prominent factors identified by the report are availability of water, predation, translocation, hunting, and human disturbance. 1. Availability of Water The report identified availability of water as a “critical habitat variable.” Investigative Report at 8. The report concluded that, “[i]n addition to a need for better monitoring and maintenance of existing waterholes, a better distribution of permanent water supplies is needed to provide water in all areas of suitable sheep habitat.” Id. at 9. The report identified strategies such as identifying existing permanent water sources that could be improved by hauling water during low-water seasons, identifying existing water sources that could be redeveloped to improve capacity and efficiency, and identifying locations for new water sources. Id. at 10. With respect to new water sources, the report stated that “[n]ew water developments can likely be constructed outside of wilderness, although construction in wilderness should remain an option if a wilderness location best meets wildlife:management needs.” Id. at 9. “Plans for ... new water developments will require an environmental assessment and minimum requirement analysis/minimum tool analysis.” Id. at 10. 2. Predation The report examined predation, primarily by mountain lions. Id. at 11-15. The report noted that, until 2003, no mountain lions were known to exist within the Refuge. Id. at 11-12. Beginning in 2003, however, there have been mountain-lion sightings and confirmed mountain-lion kills of bighorn sheep. Id. at 12. “The overall impact of mountain lion predation on the sheep population is unknown. It is unlikely that lion predation alone accounts for the decline observed, but it may be additive to other sources of mortality or sufficient to prevent sheep population recovery. Predation by bobcats or coyotes may also be a contributing factor....” Id. at 13. “Limited removal of individual lions identified as regularly preying on sheep may help the bighorn population recover to historical levels.” Id. “Determining the cause of bighorn sheep mortality is another vital part of assessing the effect of predation on the Kofa population.” Id. The report recommended the strategies of determining the extent of predation and reducing predation by the removal of “offending” lions until the sheep population fully recovers. Id. at 14-15. 3. Translocations The report discussed the high demand by other natural areas for translocated bighorn sheep and the history of translocations from the Refuge to distant natural areas. Id. at 18-19. The report discussed the translocation of 31 sheep in 2005 despite the relatively low population estimate in 2003. Id. at 18. The report found that, “[w]hile not the ultimate cause of the population decline, the 2005 transplant may have contributed to the low numbers seen in [one region of the Refuge] on the 2006 survey.” Id. The report concluded that no additional translocations will occur until the population of sheep returns to historical levels. Id. at 18-19. 4. Hunting “Hunting for desert bighorn sheep in Arizona is a once-in-a-lifetime opportunity and the demand for bighorn sheep hunting exceeds the allowable harvest.” Id. at 19. The report described the very restrictive limits on permitted hunting and the financial benefit to certain conservation groups, which are granted a small number of annual permits for auction at fundraisers. Id. The government agencies have “issued anywhere from 5 to 17 bighorn sheep permits for the Kofa [Refuge] ... since 1960.” Id. The report recommended, without explanation, that the agencies “[c]ontinue to offer bighorn sheep hunting opportunities consistent with sheep conservation.” Id. at 20. 5. Human Disturbance “Bighorn sheep tend to use the highest, most rugged areas within their home ranges for lambing.” Id. at 16. “Signal Peak and Castle Dome Peak are two of the most distinctive features of the refuge and as such are popular destinations for hikers.” Id. “Most use of these areas occurs in the cool winter months (November-March), which strongly overlaps the peak lambing season of January-March.” Id. The report cited documentation of “strong reactions (immediate running, left area and did not return) from Kofa sheep in response to 1 or 2 people.” Id. at 17. “Frequent human disturbance of ewes may cause them to abandon these areas for less optimal habitat, which could in turn affect lamb survival.” Id. The report recommended “[r]edue[ing] the negative impacts of human recreational activities on bighorn sheep” by monitoring sheep usage during lambing-season and, if necessary, closing popular hiking trails during lambing season. Id. 6. Conclusions and Additional Documents The report contained no overall summary and came to no conclusions about the causes of the decline in the population of bighorn sheep, nor did it make a reasoned comparison among the different potential causes and recovery strategies. The report’s discussion of water does not mention the development of the two water structures at issue in this case — the Yaqui and McPherson tanks. Those structures are listed only in a cost comparison chart near the end of the report. Id. at 23. The report lists projects “in priority order”— though the reasons for the priorities are unstated. Id. at 23 (capitalization omitted). In that list, the development of the Yaqui and McPherson tanks is listed sixth out of 14, below four strategies aimed at monitoring mountain lions and reducing mountain-lion predation and one overall strategy for recovery of bighorn sheep. Id. The Service prepared two other documents before initiating work on the new water structures within the Kofa Wilderness. The first document, titled “Kofa National Wildlife Refuge Minimum Requirements Analysis,” is a two-page document that contains a series of yes/no questions and requires the preparer to circle, with a pen or pencil, either YES or NO. The questions on the second page provide a very small space for an explanation of a yes/no answer, but the first page contains no such area. The preparer — whose identity is unknown — dutifully circled answers to the questions and, on the second page, provided very short explanations for the selected yes/no answers to those questions. The final question asks if there are potential adverse effects on wilderness. The preparer circled “YES — PROCEED TO MINIMUM TOOL ANALYSIS.” The second document, titled “Kofa National Wildlife Refuge Minimum Tool Analysis,” is a detailed explanation of the proposed action, an explanation for why it is necessary, alternative action plans (including the “no action” alternative), an analysis of the effects of the alternative action plans, and a summary description of the chosen alternative. In a section titled “Why Project Is Necessary,” the Minimum Tool Analysis states, in full: Kofa NWR was established, in part, for the conservation of desert bighorn sheep and other wildlife, and the maintenance of this population of desert bighorn sheep is very important regionally for the conservation of sheep and as a source for transplants to other locations in order to establish and re-establish other sheep herds. Wildlife is an important component of Wilderness. The three alternatives are (1) no action, (2) constructing the two structures with mechanized means, and (3) constructing the two structures without mechanized means. The Service selected alternative number 2: constructing the two structures with mechanized means. The Service rejected the no-action alternative because it would not help the sheep. The Service rejected the alternative that used non-mechanized means because it would increase the time needed to complete the project, resulting in increased disturbance to wildlife and human visitors alike. Over a three-day period in 2007, the Service built the new Yaqui and McPherson water structures, consisting mostly of aerated PYC pipe buried underground. Designed to catch rainwater and run that water into small concrete weirs or troughs, each system is capable of holding approximately 13,000 gallons of water. The Service decided to enter the two areas with motorized vehicles and equipment because it concluded, in its Minimum Tool Analysis, that using motorized equipment was safer for the workers and would reduce the amount of time the workers would be in the wilderness. The workers used existing roads and removed tracks left by the vehicles. The workers also covered the troughs with local sand and rocks to blend the structures into the natural environment, so that only the troughs and small vent pipes are visible above ground. The Yaqui tank is located in the refuge, just outside the wilderness, but two or three water diversion weirs fall within the wilderness. The McPherson tank is located well inside the wilderness, but within 0.1 mile of a designated road in the area. C. The Current Suit Plaintiffs filed suit against the Service shortly after the completion of the Yaqui tank, arguing that the structure violated the Wilderness Act because the Act prohibits any “structure or installation” within a wilderness area “except as necessary to meet minimum requirements for the administration of the area for the purpose of this chapter.” 16 U.S.C. § 1133(c). The district court granted summary judgment to the Service, holding that the Service had not violated the Wilderness Act. Plaintiffs timely appeal. DISCUSSION The Wilderness Act prohibits the development of “structure^] or installation^]” on the land “except as necessary to meet minimum requirements for the administration of the area for the purpose of this chapter.” 16 U.S.C. § 1133(c). Both parties (and we) agree that the two water tanks qualify as structures or installations in the Kofa Wilderness. At issue here is whether the water structures fall within the quoted exception in the Act. The Service argues that these structures fit within the exception in the Wilderness Act because (1) the conservation of bighorn sheep is a valid “purpose” of the Wilderness Act and (2) the Service adequately determined that the structures are necessary to meet the minimum requirements for conserving bighorn sheep. Plaintiffs disagree on both points. Under the Administrative Procedure Act, we may “set aside agency action” only if we determine that the action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(a). We have held that this standard requires us to carefully review the record to ensure that agency decisions are founded on a reasoned evaluation of the relevant factors, and may not rubber-stamp administrative decisions that [we] deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute. Nevertheless, we may not substitute our judgment for that of the agency.... Friends of Yosemite Valley v. Norton, 348 F.3d 789, 793 (9th Cir.2003) (citation, internal quotation marks, and alterations omitted). A. Conservation of Bighorn Sheep as a Purpose of the Wilderness Act As stated above, the Wilderness Act prohibits “structure^] or installation^]” unless they are necessary to meet the minimum requirements of a “purpose” of the Wilderness Act. 16 U.S.C. § 1133(c). We first must decide if the Service’s determination that a purpose of the Act includes conservation of the bighorn sheep is unambiguously contrary to the language of the Wilderness Act. If so, the structures violate the Act, and we will “give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A, Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837, 846, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If not, we must then determine what level of deference to grant to the Service’s interpretation, a determination that depends upon whether the Service’s interpretation has the force of law. Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). The Act begins with a broad statement of purpose: In order to assure that an increasing population, accompanied by expanding settlement and growing mechanization, does not occupy and modify all areas within the United States ..., leaving no lands designated for preservation and protection in their natural condition, it is hereby declared to be the policy of the Congress to secure for the American people of present and future generations the benefits of an enduring resource of wilderness. 16 U.S.C. § 1131(a). The Act defines wilderness as “an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain,” and as “an area of undeveloped Federal land retaining its primeval character and influence, ... which is protected and managed so as to preserve its natural conditions.” Id. § 1131(c). The Act also states that the “agency administering any area designated as wilderness” must “administer such area for such other purposes for which it may have been established as also to preserve its wilderness character.” Id. § 1133(b). Had Congress stopped there, these strongly worded phrases would have suggested that wilderness areas were to remain untouched- — not merely untouched by development but, literally, untouched by humans. But Congress did not mandate that the Service preserve the wilderness in a museum diorama, one that we might observe only from a safe distance, behind a brass railing and a thick glass window. Instead, Congress stated that the wilderness was to be preserved as wilderness and made accessible to people, “devoted to the public purposes of recreational, scenic, scientific, educational, conservation, and historical use.” Id. Congress was specific about what it understood might be necessary to preserve the wilderness for such public purposes. Congress expressly authorized structures, motorized vehicles, and temporary roads if such things are necessary to meet the minimum requirements for administering the area, id. § 1133(c); indeed, the Act permits, under certain circumstances, aircraft and motorboat use and even mining, id. § 1133(d). Those uses are incompatible with a museum notion of wilderness. Read as a whole, the Act gives conflicting policy directives to the Service in administering the area. The Service is “charged with maintaining the wilderness character of the land, providing opportunities for wilderness recreation, managing fire and insect risk, and even facilitating mineral extraction activities.” High Sierra, 390 F.3d at 647. It is charged with simultaneously devoting the land to “conservation” and protecting and preserving the wilderness in its natural condition. 16 U.S.C. §§ 1131(c), 1133(b). We cannot discern an unambiguous instruction to the Service. Rather, those competing instructions call for the application of judgment and discretion. We may be able to identify violations at the margins but, in this case, the Act is not so clear that we can identify precisely what the Service must do and must not do. We conclude that the purpose of the Wilderness Act with regard to conservation is ambiguous. See High Sierra, 390 F.3d at 647-48 (“Although we believe that Congress intended to enshrine the long-term preservation of wilderness areas as the ultimate goal of the Act, the diverse, and sometimes conflicting list of responsibilities imposed on administering agencies renders Congress’s intent arguably ambiguous.”). Our decision in Wilderness Society v. United States Fish & Wildlife Service, 353 F.3d 1051 (9th Cir.2003) (en banc), is not to the contrary. In Wilderness Society, the Service initiated a sockeye salmon enhancement project in a freshwater lake, located in the Kenai Wildlife Refuge and Wilderness, that flowed into the Gulf of Alaska. The Service planned to allow a private corporation to capture 10,000 sockeye salmon each year and transport about 10 million eggs to a hatchery outside the Kenai Wilderness. During the spring, the organization planned to return about 6 million salmon to the wilderness and to sell the rest. Id. at 1058. The plaintiffs argued that the corporation’s activities fell within the Wilderness Act’s ban on all “commercial enterprise[s]” within a wilderness area (subject to certain exceptions inapplicable in that case). Id. at 1061 (citing 16 U.S.C. § 1133(c)). Looking to the common meaning of the term and to the purpose and structure of the Act, we held that the corporation’s activities unambiguously fell within the Act’s prohibition on commercial enterprises. Id. at 1062. Wilderness Society is easily distinguishable from the present case. There, we gave effect to the unambiguously expressed intent that, subject to certain inapplicable exceptions, commercial enterprises were prohibited. The Service argued that its interpretation of the undefined term “commercial enterprise” was entitled to some deference but we held that, because the primary purpose and effect of the action was purely commercial, no deference was due. Here, by contrast, we must analyze conflicting instructions in the Wilderness Act: The Service must preserve the wilderness character of the area while at the same time providing for “recreational, scenic, scientific, educational, conservation, and historical use.” 16 U.S.C. § 1133(b). Both the specific statutory mandate that “conservation” is a valid purpose of the Act and the historical focus of the area on the preservation of bighorn sheep render this case vastly different from the situation we analyzed in Wilderness Society. Because we conclude that the term “conservation” is ambiguous, we turn to the question of what level of deference to grant the Service’s interpretation of “conservation” as including wildlife conservation and, more specifically, conservation of bighorn sheep. United States v. Mead Corp., 533 U.S. 218, 229-30, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001); Christensen, 529 U.S. at 587, 120 S.Ct. 1655. We apply Chevron deference “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” Mead, 533 U.S. at 226-27, 121 S.Ct. 2164. “It is fair to assume generally that Congress contemplates administrative action with the effect of law when it provides for a relatively formal administrative procedure tending to foster the fairness and deliberation that should underlie a pronouncement of such force.” Id. at 230, 121 S.Ct. 2164. By contrast, “[i]nterpretations such as those in opinion letters — like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law — do not warrant Chevron-style deference.” Christensen, 529 U.S. at 587, 120 S.Ct. 1655. “Such views, ... even if not authoritative for purposes of Chevron, are entitled to so-called Skidmore deference insofar as they ‘constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.’ ” Vigil v. Leavitt, 381 F.3d 826, 835 (9th Cir.2004) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). Here, the 1997 Management Plan was subject to public review and comment and was intended to “provide long-term management guidance.” But, other than stating that the plan was subject to public review and comment, the record is bereft of any other information describing the formality of the administrative procedure that fostered the plan. We are not convinced that the “management guidance” included in the plan carries the force of law. On this record, we are unable to distinguish with certainty the plan from “interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law.” Christensen, 529 U.S. at 587, 120 S.Ct. 1655. We therefore apply Skidmore deference. Under that standard, “the deference to be accorded ... depends upon ‘the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.’ ” Wilderness Soc’y, 353 F.3d at 1060 (quoting Mead, 533 U.S. at 228, 121 S.Ct. 2164). The plan demonstrated consistency in recounting the history of Kofa and its “conservation role in western Arizona.” Management Plan at 2. Preservation of the bighorn sheep in the area was one of the principal motivations for President Roosevelt’s establishing the Kofa Game Range in 1939. From the beginning, federal agencies cooperated with the Arizona Game and Fish Department to protect the bighorn sheep. The plan reiterated that preserving desert bighorn sheep was an important component of the management of the area and noted that the “management theme” of the area is devoted “[t]o counter dwindling populations of desert bighorn sheep” and to “continue important efforts on behalf of the bighorn sheep.” Id. at 2-3. The plan also demonstrated thoroughness in addressing the new requirements that the wilderness designation would impose on the goal of conserving bighorn sheep. It concluded: There is no question that management of this species remains as one of the princip[al] missions of the Kofa [National Wildlife Refuge].... However, the new considerations relative to the Wilderness designations require the Service and the BLM to review management techniques and their compatibility with wilderness principles. Id. at 36. The plan acknowledged that “the Service is responsible to carry out a dual, but nonetheless interrelated, role of managing for bighorn sheep within the context of wilderness.” Id. at 37. The plan further recognized that the Service had “to maintain the natural character of the landscape” consistent with the Wilderness Act, a duty that required use of “the minimum tool necessary to accomplish the work” and “technologies ... as unobtrusive as possible.” Id. at 37, 39. The plan continued: The needs of the species and the requirements of the Act are not necessarily in conflict. In fact, the habitat management work done to benefit bighorn sheep, including water development, could have a positive influence on the natural cycles of predation and succession for a diversity of life in the desert without detraction of wilderness attributes and values. Id. at 39-40. In light of the historical purpose of the area to preserve bighorn sheep and the explicit purpose of “conservation” in the Act, we find that the Service’s reasoning was thorough, valid, consistent, and persuasive. We defer to the Service’s interpretation in the Management Plan that conservation of the bighorn sheep is consistent with the purposes of the Wilderness Act. B. The Wilderness Act’s Exception for Structures that are “Necessary” to Meet the “Minimum Requirements” for Conserving Bighorn Sheep The Wilderness Act prohibits the development of any structure within a wilderness area, subject to only one exception: “except as necessary to meet minimum requirements for the administration of the area for the purpose of this chapter.” 16 U.S.C. § 1133(c). Because the conservation of bighorn sheep is a valid purpose of the Wilderness Act, the relevant question is whether the Service made an adequately reasoned determination of necessity. See High Sierra, 390 F.3d at 646-47 (holding that, in order to invoke an exception to prohibited conduct in a wilderness area, the Wilderness Act requires the relevant agency to make a reasoned finding of necessity). In High Sierra, we interpreted the similar provision 16 U.S.C. § 1133(d)(5), which permits commercial services “to the extent necessary for activities which are proper for realizing the recreational or other wilderness purposes of the areas.” We held that “[i]t is clear that the statutory scheme requires ... that the Forest Service make a finding of ‘necessity’ before authorizing commercial services in wilderness areas.” High Sierra, 390 F.3d at 646. We held that the Wilderness Act “does not specify any particular form or content for such an assessment” and that we must defer to the form selected by the agency. Id. at 646-47. Accordingly, we found that a “Needs Assessment” document prepared by the Forest Service sufficed as the required “necessity” finding. Id. at 647. However, under the terms of the Wilderness Act, a finding of necessity is a necessary, but not sufficient, ground for permitting commercial activity in a wilderness area. The finding of necessity required by the Act is a specialized one. The Forest Service may authorize commercial services only “to the extent necessary.” Id. (quoting 16 U.S.C. § 1133(d)(5)). Keying off the emphasized text, we held that “the Forest Service must show that the number of [commercial activity] permits granted was no more than was necessary to achieve the goals of the Act.” Id. We held that the Needs Assessment document did not meet that requirement because “[n]owhere in the[document] does the Forest Service articulate why the extent of such [commercial] services authorized by the permits is ‘necessary.’” Id. The Needs Assessment document “examined independently three topics related to the need for commercial services: the types of activities for which commercial services are needed, the extent to which current permits are being used, and the amount of use the land can tolerate.” Id. “All of these are relevant factors to consider ... [but], at some point in the analysis, the factors must be considered in relation to one another.” Id. “If complying with the Wilderness Act on one factor will impede progress toward goals on another factor, the administering agency must determine the most important value and make its decision to protect that value. That is what the Forest Service failed to do in this case.” Id. Here, similarly, the relevant statutory provision prohibits the creation of structures within a wilderness area “except as necessary to meet minimum requirements for the administration of the area for the purpose of this chapter.” 16 U.S.C. § 1133(c). Like the similar provision in High Sierra, this provision requires the agency to make a finding of necessity. But a generic finding of necessity does not suffice, High Sierra, 390 F.3d at 647; the Service must make a finding that the structures are “necessary” to meet the “minimum requirements for the administration of the area for the purpose of [conserving bighorn sheep],” 16 U.S.C. § 1133(c) (emphasis added). The Service failed to make that required finding. The Service undoubtedly found that, assuming that improvements to water facilities were necessary, the development of the two water structures was necessary. The record contains the requisite necessity finding as to that narrow question and a reasoned analysis justifying the finding. But the key question — whether water structures were necessary at all — remains entirely unanswered and unexplained by the record, even though the Service’s own documentation strongly suggests that many other strategies could have met the goal of conserving bighorn sheep without having to construct additional structures within the wilderness area (for example, eliminating hunting, stopping translocations of sheep, and ending predation by mountain lions). The Service points us to the three documents discussed in some detail in the factual background section, above: the 2007 Investigative Report, the Minimum Requirements Analysis, and the Minimum Tool Analysis. But they do not contain the required analysis. The Service’s 2007 Investigative Report provided a thorough, neutral, and scientific assessment of the many factors that contribute to sheep mortality, and the report made recommendations pertaining to each mortality factor. But the Investigative Report did not — and did not purport to— assess the factors relative to each other. Nor did the Investigative Report reach legal conclusions or even cite the relevant legal standard that the Service must apply before developing structures in a wilderness area. What the report did conclude, however, is that many factors other than access to water, either alone or in combination, might suffice to restore the population of bighorn sheep. Perhaps most importantly, the report concludes that mountain lions recently began inhabiting the Kofa Refuge and killing bighorn sheep; in fact, the arrival of mountain lions corresponds precisely to the time frame in which the population of sheep declined from its previously stable, optimal level. After decades of mountain-lion absence, the Service first received reports of mountain lions (and mountain-lion kills of bighorn sheep) in the Kofa Refuge during the crucial time period of 2003 to 2006. The report even concludes that mountain-lion predation may be “sufficient to prevent sheep population recovery.” In its summary chart, the report lists four different actions related to mountain-lion predation as higher priorities than the development of water structures. Similarly, the report acknowledges that, despite the relatively low population of sheep in 2003, the Service carried out a translocation of 31 sheep from the Refuge in 2005 which, the report concluded, “may have contributed to the low numbers seen in [one region of the Refuge] on the 2006 survey.” The report recommends that the temporary cessation of translocations be continued. Next, the report notes the obvious fact that hunting results in a population decline. Yet the report recommends, without explanation, that hunting be continued in the Refuge. Finally, the report explains that human disturbance may lead to a reduction in the survival rate of bighorn lambs, and the report notes that peak hiking season in prime lambing territory corresponds directly to peak lambing season. The report concludes that temporary trail closures may be advisable. In short, the report identified many different actions that were likely to lead to an increase in the population of bighorn sheep: reduction in mountain-lion predation, cessation of translocations, moratorium on hunting, and temporary trail closures. Importantly, in contrast to the creation of new structures within the wilderness, the Wilderness Act does not prohibit any of those actions. The Service could have taken any or all of those actions without the need for a finding of necessity. Yet nowhere in the record does the Service explain why those actions, alone or in combination, are insufficient to restore the population of bighorn sheep. The Investigative Report did, of course, identify the creation of the new structures as one possible strategy toward the recovery of the bighorn sheep population. But the report never stated that the two water structures are necessary, either in the abstract or with respect to the statutory standard (which the report nowhere cited). The report simply listed that action-item alongside the many other action-items, including those described above, all of which might contribute to the recovery of the bighorn sheep. Indeed, the report concluded that “[n]ew water developments can likely be constructed outside of wilderness,” which would not require a finding of necessity. To the extent that the report contemplated the construction of water structures within the wilderness, it stated that those structures “will require ... [a] minimum requirement analysis/minimum tool analysis.” Before building the two water structures, the Service did complete a Minimum Requirements Analysis and a Minimum Tool Analysis. Those documents amply describe the reasons for the Service’s decision to construct these two particular water structures, assuming that water structures are necessary at all. But, again, nowhere does the Service address that underlying assumption. The documents leap from the worthy goal of conserving bighorn sheep to the need for additional water structures. The basis for that analytical leap is nowhere described. In fact, with only one possible exception, the two documents provide no basis for the conclusion that the Service even considered the possibility of actions other than the construction of water structures. The documents as a whole demonstrate that the Service began with the assumption that water structures are necessary and reasoned from that starting point. In only one place is it even arguable that the Service considered the possibility of other actions. On the first page of the yes/no checklist, the Service circled “NO” in response to the question: “Are there other less intrusive actions that can be taken or that should be tried first inside or outside wilderness that will resolve this issue? (i.e. signing, visitor education, information, regulations, use limits, law enforcement, are [sic] or trail closures, etc). Circle Yes or No.” Viewing the documents as a whole, the Service’s response to this question likely carried forward its primary underlying assumption: that water structures are necessary. In context, the Service likely interpreted this question as asking whether “other less intrusive [water-based] actions” such as hauling of water or development of structures outside of wilderness “should be tried first.” Even if one assumes that the Service understood this question as querying whether other non-water-based actions should be tried first, this lone, generic question cannot meet the requirement under the Wilderness Act that the Service explain its conclusion. As we wrote in High Sierra, 390 F.3d at 647, the Service must, “at some point in the analysis,” weigh the relevant factors “in relation to one another.” (Emphasis added.) As in High Sierra, “[n]owhere in the [record] does the ... Service articulate why ” the action taken is “necessary” to meet the “minimum requirements” of the Act. Id. (emphasis added). And, as in High Sierra, that failure is fatal. Where, as here, the record demonstrates that many alternative actions not prohibited by the Wilderness Act very well could have attained the Service’s goal, a single yes/no question cannot suffice to invoke the very limited exception for structures that are necessary to meet the minimum requirements for the administration of the purposes of the Wilderness Act. The Service’s decision “entirely fail[s] to consider an important aspect of the problem,” namely, the failure to consider whether new water structures are necessary at all. Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.2008) (en banc) (internal quotation marks omitted), overruled in other part as recognized by Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009). The Wilderness Act imposes a strong prohibition on the creation of structures, subject only to an exception for structures that are necessary to meet the Act’s minimum requirements. Just because a particular variable affects the sheep’s viability, the Service is not free to create structures addressing that variable without regard to any other variables at play. The Act certainly provides for some flexibility to address a given situation, even with imperfect information and time and budget constraints. But, unless the Act’s “minimum requirements” provision is empty, the Service must, at the very least, explain why addressing one variable is more important than addressing the other variables and must explain why addressing that one variable is even necessary at all, given that addressing the others could fix the problem just as well or better. There is little question that improvements to the water supply likely will help the sheep recover. But, when the issue is a new structure, that conclusion is not good enough under this statute. The statute requires that a structure be “necessary to meet minimum requirements” of the wilderness. 16 U.S.C. § 1133(c). It is beyond dispute that, if addressing other variables will lead to satisfactory sheep recovery, then a new structure is not “necessary.” The Service’s complete failure to address that key question is fatal to its conclusion. CONCLUSION The Wilderness Act requires a delicate balancing between Congress’ desire to maintain lands untouched by humans and Congress’ recognition that such an idealistic view is subject to some practical limitations. The prohibition on the creation of permanent structures within a wilderness area is one of the strictest prohibitions, subject only to an exception for structures that are necessary to meet the minimum requirements for the administration of the purposes of the Act. It may be that the two water structures at issue here are, in fact, necessary to meet the minimum requirements for conserving bighorn sheep, which is a permissible purpose. But, in light of the many other potential avenues of achieving bighorn sheep conservation identified by the Service itself, the Service must provide enough evidence and explanation in the record to assure this court that it fully considered those avenues and nevertheless rationally concluded that new water structures are, in fact, necessary. Because the record is wholly inadequate to meet that requirement, we reverse the district court’s determination to the contrary and remand with instructions to determine the appropriate remedy. On remand, the court may accept briefing from the parties on whether to require the Service to dismantle the structures, to remand the matter to the Service for reconsideration regarding “necessity” under the Wilderness Act, or to fashion such other relief as may be appropriate. REVERSED and REMANDED with instructions. . The record often fails to distinguish between the area designated as refuge and the area designated as wilderness. We will refer to the area as the Kofa Refuge or Kofa Wilderness as necessary in this opinion. When we refer to the Kofa Wilderness, we are referring to the part of the Kofa Refuge designated as wilderness, which is subject to provisions of the Wilderness Act and the Refuge Act. We use Kofa Refuge to refer to the entire area. We note that about 18% of the Kofa Refuge is subject only to the provisions of the Refuge Act, an arguably less restrictive statute than the Wilderness Act. . The plan also covered the New Water Mountains Wilderness. . The first translocation occurred in 1957, and a total of 569 sheep have been moved from the refuge. . Plaintiffs also sought a temporary restraining order against construction of the McPherson tank. The parties settled that issue out of court, and the Service built the structure. . At the district court and on appeal, Plaintiffs also argued that the Service violated the National Environmental Policy Act of 1969 by failing to prepare a public analysis of the environmental effects of the water structures. Because we hold that Plaintiffs prevail on their claim under the Wilderness Act, we need not and do not reach their claim under the National Environmental Policy Act. . In the alternative, we held that the corporation's activities constituted a commercial enterprise, "even if we were to assume that the Wilderness Act’s prohibition on commercial enterprise within the wilderness is ambiguous.” Wilderness Soc'y, 353 F.3d at 1067-69. . Arizona granted legal protection to bighorn sheep in 1913. . It is that specific necessity finding, mandated by the statute, that the Service must make. We in no way hold that the Service must make a finding of "absolute necessity.” Dissent at 1050-51. . As we have explained, and notwithstanding the dissent’s assertions to the contrary, the documents in the record simply do not contain an explanation for that key question. The dissent cobbles together its own explanation from disparate parts of the various documents at issue and from its own analysis of sheep recovery, but it is the Service's explanation, or lack thereof, that we must review, and we cannot supply missing elements for the agency. . On appeal, Plaintiffs requested a specific remedy: removal of the structures via non-motorized means. The Service did not object and, indeed, did not address the issue of remedy at all. We express no opinion on whether the Service may be precluded, by waiver or otherwise, from objecting to that form of relief. Because the Service did not brief the issue of remedy, we believe that it is prudent to remand the issue to the district court to address with the benefit of full advocacy. The dissent's view of the appropriate remedy is, as we state in text, one possible option. But we are perplexed by the dissent's insistence that we must reach an issue that one party failed to brief — particularly because our decision to remand prejudices neither party.

Wilderness Watch, Inc. v. U.S. Fish & Wildlife Service

BYBEE, Circuit Judge, dissenting: This should not have been a hard case. For more than seventy years, “[t]he dominant wildlife and habitat management theme for the Kofa ... has been the preservation of the desert bighorn sheep species.” For much of that period, the Fish and Wildlife Service (“Service”), together with the BLM and the Arizona Game and Fish Department (“AGFD”), has supplied water to bighorn herds in the Kofa. So it is no surprise that after observing a dramatic decline in the bighorn population in this region, the Service proposed a variety of non-mutually exclusive solutions, including redevelopment of the Yaqui and McPherson tanks — two existing but unreliable water sources considered to be critical to the survival of the bighorn in the Eastern Kofa. Although “[tjhere is little question that improvements to the water supply likely will help the sheep recover,” Maj. Op. at 1039, and although “[t]he Service undoubtedly found that ... the development of the two water structures was necessary,” id. at 1037, and although the documents prepared by the Service “amply describe the reasons for the Service’s decision to construct these two particular water structures,” id. at 1038, the majority nevertheless holds that the agency acted arbitrarily and capriciously because it never explained whether there was a “need for additional water structures,” id., or even “whether water structures were necessary at all.” Id. at 1037. In the process, the majority holds that the Service should have engaged in a formalized, side-by-side comparative analysis of the various factors affecting the bighorn’s decline, id. at 1038, even though we previously told the Service that the Wilderness Act “does not specify any particular form or content” for a finding that an action is “necessary.” High Sierra Hikers Ass’n. v. Blackwell, 390 F.3d 630, 647 (9th Cir.2004). In so holding, as I explain in Part I, the majority ignores our deferential standard of review under the APA and engrafts new procedural requirements onto the Wilderness Act. Additionally, as I explain in Part II, the majority fundamentally misconstrues the appropriate remedy for cases where an agency provides insufficient reasons for its action. Rather than remanding this case to the agency for a fuller explanation of its reasoning — as both Supreme Court and circuit precedent require — the majority remands to the district court for an exercise in futility: determination of the appropriate remedy. Then, under the guise of “expressing] no opinion on whether the Service may be precluded, by waiver or otherwise, from objecting to th[e] form of relief’ requested by the Plaintiffs, the majority even suggests that dismantling the structures may be the only appropriate remedy in this case. Maj. Op. at 1040 n. 10. I respectfully dissent. I There is nothing unusually difficult about this case. Like any other routine administrative law appeal, it presents a finding made by an agency — here, the Service’s finding that building additional water sources was necessary to meet minimum administrative requirements for the conservation of the bighorn in the Kofa— and a subsequent decision based upon this finding — here, the Service’s decision to redevelop the Yaqui and McPherson tanks. Our task is, simply, to determine whether the agency’s finding, and thus its subsequent decision, was “arbitrary” or “capricious,” 5 U.S.C. § 706(2)(A), in light of the administrative record as a whole. We know the standard of review: We may not overturn the Service’s decision simply because we disagree with it, nor may we substitute our own judgment for that of the Service because we feel the Service’s decision was imprudent or unwise. See River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir.2010). Rather, we must simply determine whether “the [Service’s] decision is founded on a rational connection between the facts found and the choices made ... and whether [the Service] has committed a clear error of judgment.” Id. (citation and quotation marks omitted). “To do so, we look to the evidence the ... Service has provided to support its conclusions, along with other materials in the record, to ensure that the Service has not, for instance, 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 an explanation that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” The Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir.2008) (en banc) (quotation marks and alterations omitted). “Even when [the Service] explains its decision with less than ideal clarity, [we] will not upset the decision on that account if the [Service’s] path may reasonably be discerned.” Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 497, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004) (quotation marks and citation omitted). Here, the Service has produced three primary documents to explain why redeveloping the Yaqui and McPherson water structures was necessary to meet minimum requirements for the conservation of the bighorn: (1) the Investigative Report and Recommendations for the Kofa Bighorn Sheep Herd (“Kofa Bighorn Investigative Report”), a 39-page report that found a need to supply bighorn sheep with water; (2) the Kofa National Wildlife Refuge Minimum Tool Analysis (“Kofa Minimum Tool Analysis”), a six-page document that concluded that without action, the bighorn population would continue to decline; and (3) the Kofa National Wildlife Refuge Minimum Requirements Analysis (“Kofa Minimum Requirements Analysis ”), a two-page decision document that found there were no other less intrusive actions that could be taken to reverse the decline of the bighorn. Together, these documents demonstrate that the Service considered all the important aspects of the problem and offered a reasonable explanation for the necessity of building additional water sources for the sheep. Accordingly, with a few citations to important sections of these various reports, the majority should uphold the Service’s decision in a rather unremarkable opinion. Instead, the majority holds the Service’s decision arbitrary and capricious not because of what the Service said in its reports, but because of what, allegedly, it did not say. Specifically, the majority claims the Service never stated that water structures were necessary and never explained why addressing factors other than water would be insufficient to reverse the bighorn’s decline. As I discuss below, the record reveals the Service thoroughly addressed the majority’s concerns. A First, the majority holds the Service acted arbitrarily and capriciously because the Service “never stated that the two water structures are necessary, either in the abstract or with respect to the statutory standard.” Maj. Op. at 1038. However, the Service did explicitly state “there[are no] other less intrusive actions,” other than redeveloping the two water tanks, that would help the sheep recover. See Kofa Minimum Requirements Analysis at 1. I give this statement its plain and ordinary meaning: “the two water structures are necessary, either in the abstract or with respect to the statutory standard.” Maj. Op. at 1038. To explain the Service’s statement, the majority conjures up a handy expedient: the Service’s statement is meaningless because, you see, the Service had already “assum[ed] that water structures are necessary and reasoned from that starting point.” Id. at 1038. Thus, according to the majority, the Service’s statement “likely carried forward [this] primary underlying assumption.” Id. As I explain below, a close reading of the Service’s reports reveals the Service never assumed water structures were necessary; rather, the Service arrived at this conclusion after carefully studying the bighorn’s decline. The Kofa Bighorn Investigative Report, conducted jointly by the Service and the AGFD, reveals both that bighorn sheep need reliable water sources to survive and that reliable water sources must be supplied to the bighorn. Specifically, the report found that “water distribution is a critical habitat variable for desert bighorn” and that the sheep are “dependent] on reliable water sources.” Kofa Bighorn Investigative Report at 8. The report found that in areas where the AGFD had maintained water for the sheep, the populations “remained fairly stable in comparison to the Kofa population.” Id. at 9. Yet despite the critical importance of reliable water sources, “[f]ew of the [existing] bighorn waters could be considered permanent, which means that they may go dry during the height of summer when water is needed most, or during drought years.” Id. Indeed, a water survey conducted during a drought year revealed that “very few of the known waterholes were not dry.” Id. This observation is significant first, because it shows sheep must be supplied with water, and second, because when “a water source dries up, bighorn may not move to new areas to find water.” Id. Thus, it does not matter much that the Kofa Wilderness “has a large number of water sources” because “their utility for sheep and their reliability varies greatly.” Id. In light of these observations, the report determined that [i]n addition to a need for better monitoring and maintenance of existing waterholes, a better distribution of permanent water supplies is needed to provide water in all areas of suitable sheep habitat.... Some existing ephemeral waters can be improved or redeveloped to hold water longer, but in some areas new waters might need to be built.... New water developments can likely be constructed outside of wilderness, although construction in wilderness should remain an option if a wilderness location best meets wildlife management needs. Id. Accordingly, the report recommended that the agency “[i]dentify existing waters that need to be redeveloped to improve water holding capacity and efficiency” to “[e]nsure year-round water availability for all bighorn sheep on the Kofa [National Wildlife Refuge].” Id. at 10. The Kofa Bighorn Investigative Report was consistent with the Service’s comprehensive management plan, which likewise stressed that bighorn sheep must be supplied with water to survive. Specifically, the management plan explained that [i]n the extremely dry Sonoran Desert ecosystem, water is the primary habitat component and variable. Over the years, wildlife managers have learned to manipulate the conservation of water in the desert for wildlife management purposes .... Kofa NWR has a long history of water hole development projects aimed at improving wildlife numbers and distribution throughout the refuge. Kofa Management Plan at 31. The Kofa Management Plan further explained that “[e]ven with ... improvements some [water] tanks occasionally go dry.” Id. “To prevent large scale wildlife movement away from these areas, or even worse, wildlife die offs, water is hauled to these drought susceptible tanks when needed.” Id. Moreover, the Service addressed the need for “artificial water catchments” to help preserve bighorn sheep in the Kofa. Id. at 36; see also id. at 38 (“The development of water sources for the bighorn sheep has been an important factor in species recovery since the 1950s.”); id. at 39 (“Strategic water development programs” for bighorn are a “key management tool[ ] in the restoration of moribund [bighorn] populations to historic carrying capacities.”) (internal quotation marks omitted). Thus, as obvious as the need for water is in the desert Southwest, the Service never “assum[ed] that water structures [were] necessary,” as the majority asserts. Maj. Op. at 1038. Rather, the Service arrived at this conclusion after carefully documenting the impact of water availability on the survival of the bighorn. After explaining why — as a general proposition — water structures are necessary for the survival of the bighorn, the Service explained why the two particular water structures at issue here — the Yaqui and McPherson tanks — were necessary. Specifically, the Service noted that the Yaqui and McPherson tanks were “considered to be critical to bighorn sheep, based on them locations in sheep habitat and documentation of sheep use.” Kofa Bighorn Investigative Report at 9. The Service further explained that “permanent water sources for desert bighorn sheep are relatively clustered, leaving large areas of desert bighorn sheep habitat without permanent water” and that the planned Yaqui and McPherson tanks were “relatively distant” from other existing, permanent water sources. Kofa Minimum Tool Analysis at 1. Thus, the Yaqui and McPherson tanks “would fill gaps in the eastern portion of the Kofa Mountains and in the McPherson Pass area.” Id. Aside from highlighting the remote locations of the Yaqui and McPherson tanks, the Service also explained that redeveloping these two tanks “would provide reliable, year-round water for desert bighorn sheep at two locations ... where the existing Yaqui and McPherson Tanks have not always been reliable and have been very difficult, logistically, to maintain.” Id. The Service further stressed the unreliability of the existing water tanks when explaining why the project was a redevelopment: the project involved the installation of “a modern design requiring little water augmentation ... in the vicinity of an existing, nonfunctional or unreliable source.” Id. (emphasis added). The Service then considered alternatives: (1) not to redevelop the Yaqui or McPherson tanks, (2) to redevelop the tanks using mechanized means, or (3) to redevelop the tanks through non-mechanized means. See Kofa Minimum Tool Analysis at 2-5. It rejected the first alternative — doing nothing — because “[wjithout improvements to the current distribution of permanent water, the desert bighorn sheep population could be expected to continue to decline,” while providing water would “assist[ ] lactating ewes in milk production” thereby “improving] lamb survival, which is critical to population recovery.” Id. at 3. The Service characterized the option of doing nothing as “failing to meet its responsibilities for wildlife and habitat management ... [and] its legal or policy requirements.” Id. at 4. Of the two remaining alternatives, the Service recommended the second — mechanized redevelopment of the Yaqui and McPherson tanks — because using vehicles and mechanized tools would minimize the time its employees spent in the wilderness (three days versus two to three weeks for non-mechanized redevelopment). Based on the documents discussed above, the Service ultimately determined that there were no other “less intrusive actions that can be taken or that should be tried first inside or outside wilderness” to reverse the decline of the bighorn and that the “activity [could not] be accomplished outside of [the] wilderness.” Kofa Minimum Requirements Analysis at 1. The Service then evaluated the potential adverse effects on the -wilderness character and concluded that the project should proceed because “[w]ildlife is a wilderness resource” and “[t]he proposed action is intended to restore and maintain wildlife and wildlife habitat.” Id. at 2. Significantly, the Service even explained how redeveloping the Yaqui and McPherson tanks would actually increase the wilderness character of the land: “Overall, the impact of maintenance activities in the Kofa Wilderness would decrease since very little water hauling after construction is expected to take place.” Kofa Categorical Exclusion at 5. The majority nevertheless argues that “nowhere in the record does the ... Service articulate why the action taken is necessary to meet the minimum requirements of the Act,” Maj. Op. at 1038-39 (alterations omitted), and that the Service did not address “the key question — whether water structures were necessary at all,” leaving that question “entirely unanswered and unexplained.” Id. at 1037. The record belies the majority’s claim. Looking at these documents as a whole, the Service articulates repeatedly that the bighorn sheep need water to survive and that the existing water sources are not adequate for sheep in the Kofa Mountains and the McPherson pass area. See, e.g., Kofa Bighorn Investigative Report at 8-9 (stating that “water distribution is a critical habitat variable for desert bighorn, ... [sheep are] dependent] on reliable water sources, ... a better distribution of permanent water supplies is needed to provide water in all areas of suitable sheep habitat, ... new waters might need to be built, [and] ... construction in wilderness should remain an option if a wilderness location best meets wildlife management needs”); Kofa Minimum Tools Analysis at 3 (stating that “[w]ithout improvements to the current distribution of permanent water, the desert bighorn sheep population could be expected to continue to decline”); Kofa Minimum Requirements Analysis at 1 (stating that “there [are no] other less intrusive actions,” other than redeveloping the two water tanks, that would help the sheep recover); Kofa Categorical Exclusion at 4 (stating that “[w]ithout improving the distribution and reliability of available water, it is likely that the desert bighorn sheep will continue to decline”). Admittedly, the Service could have been more didactic in its explanation, locating it in one document rather than several. But because the Wilderness Act “does not specify any particular form or content” for the Service’s finding of necessity, High Sierra Hikers, 390 F.3d at 647, the Service does not fail to make a finding of necessity simply because it does not explain its reasoning in a single document. The majority, however, accuses me of “cobbl[ing] up [my] own explanation [of why water structures were necessary] from disparate parts of the various reports ... [when] it is the Service’s explanation, or lack thereof, that we must review.” Maj. Op. at 1037 n. 8. With respect, the majority misses the point. The majority wants the Service to hold us by the hand and to slowly and exhaustively explain to us its actions at every junction along the way. But the Service’s reasoning and conclusions are readily discernable from the record, and so we are required to uphold the Service’s decision to redevelop the two water tanks. See Alaska Dept. of Envtl. Conservation v. EPA 540 U.S. 461, 497, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004) (“Even when an agency explains its decision with less than ideal clarity, a reviewing court will not upset the decision on that account if the agency’s path may reasonably be discerned.”) (internal quotation marks omitted); see also River Runners, 593 F.3d at 1078 (holding that absence of a specific discussion of the amount of motorized traffic found necessary and appropriate does not require overturning the agency’s action if the agency’s consideration of the motorized traffic necessary “can reasonably be discerned” from the documents provided by the agency). We have no right to impose additional burdens on the agency because we think we can improve its handling of the matter. See Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 546, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) (“[I]f courts continually review agency proceedings to determine whether the agency employed procedures which were, in the court’s opinion, perfectly tailored to reach what the court perceives to be the ‘best’ or ‘correct’ result, judicial review would be totally unpredictable.”). B In addition to holding that the Service acted arbitrarily and capriciously because it never stated that water structures were necessary, the majority also holds the Service acted arbitrarily and capriciously because “nowhere in the record does the Service explain why [addressing other possible causes for the bighorn’s decline], alone or in combination, are insufficient to restore the population of the bighorn sheep.” Maj. Op. at 1038. But the Service did not consider the need for the Yaqui and McPherson tanks in isolation, as the majority suggests. Rather, these tanks — which service a remote area of the Kofa — are part of a comprehensive plan for promoting the survival of the bighorn. The Service also analyzed other possible causes of the bighorn’s decline and incorporated recommendations regarding these causes into its overall proposal. This comprehensive analysis discharges the Service’s obligation to consider other possible causes. 1 Nevertheless, the majority argues that redeveloping the water tanks was not “necessary” because “many factors other than access to water, either alone or in combination, might suffice to restore the population of bighorn sheep.” Maj. Op. at 1037. The majority points to four factors: translocation, human disturbance, mountain lion predation, and hunting. Id. at 31-32. But the majority is wrong. The Service did consider these factors in the 2007 Kofa Bighorn Investigative Report. Specifically, the Service found that each factor contributed in some way to the decline in the bighorn sheep population from 813 to 390 between 2000 and 2006, but concluded that drought was the principal explanation for the decline. For example, with regard to translocation, the Service observed that “[transplants of sheep from the Kofa were conducted nearly every year from 1979 through 1998 with no apparent decline in population.” Kofa Bighorn Investigative Report at 18. No sheep were transplanted from the Kofa in 2000, 2003, or 2004 “because of drought conditions.” Id. In 2005, thirty-one sheep were translocated, and the report acknowledged that “[w]hile not the ultimate cause of the population decline, the 2005 transplant may have contributed to the low numbers” in 2006. Id. In 2006, because the levels of sheep were “historically low,” the Service discontinued the transplant program until the bighorn sheep population increased to an average of 800. Id. at 18-19. With respect to human disturbance, the investigative report acknowledged that a “study conducted from 1977 to 1984 documented strong reactions ... from Kofa sheep in response to 1 or 2 people” and that “[f]requent human disturbance of ewes may cause them to abandon the[ir] areas for less optimal habitat.” Id. at 17. To address these concerns, the report recommended conducting surveys to identify critical lambing areas and instituting seasonal closures if substantial recreational use is observed in these areas. Id. These measures would certainly have some positive effect on the bighorn’s recovery. But given that hikers have been present in the Kofa for decades and that their presence has not historically correlated with a decline in the bighorn’s population, the Service could reasonably conclude that addressing human disturbance alone would not solve the bighorn’s decline. With respect to predators, particularly mountain lions, the investigative report found that “[i]t is unlikely that lion predation alone accounts for the decline observed.” Id. at 13. The report noted that “[tjhere are no verified records of mountain lions on the refuge between 1944 and 2001” but “a female lion and 2 kittens were spotted” in 2003 and “at least 5 lions [were documented] on the refuge in 2006.” Id. at 12. The report acknowledged that researchers did not know much about the threat mountain lions posed to the bighorn sheep population because “[l]ittle is known about the ... specific diet of mountain lions on Kofa NWR.” Id. The report found “evidence that some mountain lions in bighorn sheep habitat may kill multiple sheep within a year, some may kill only one sheep within a year, and some may kill no sheep at all. The key factor is that lion-sheep interactions must be studied.... ” Id. at 13. The report also stated that “predation is generally believed to rarely threaten population survival.” Id. at 11. The report proposed further study and recommended collaring lions and sheep to “[d]etermine [the] cause and extent of predation.” Id. at 14. Notwithstanding the Service’s explanation of the need for further study, the majority speculates that addressing predation alone could be sufficient to restore the bighorn sheep population. See Maj. Op. at 1037-38. The majority places far too much stock in the explanatory power of the mountain lions. The report makes clear that the relatively recent appearance of mountain lions in the Kofa may contribute to, but cannot explain, the bighorn’s decline. The bighorn herds in the Kofa declined by more than 400 sheep — a more than fifty percent decline — between 2000 and 2006. No mountain lions were even spotted until 2003, and only five were observed in 2006 in the 600,000 acre refuge. Id. at 1029-30. Most importantly — and this is one of the reasons the report recommended further study and made radio collars for lions and sheep a priority — the report stated that mountain lions were believed to have killed only one bighorn sheep in 2005 and 2006. Id. The presence of mountain lions in the Kofa cannot account for a 400-sheep decline that began three years before any lions were even observed. I thus respectfully disagree with the majority’s claim that “[ending predation by mountain lions] could have met the goal of conserving bighorn sheep without having to construct additional structures within the wilderness area.” Maj. Op. at 1037. There is no support for such conclusion in the record. Lastly, the investigative report addressed hunting. It observed that Arizona issues hunting permits in an auction to support bighorn sheep management and conservation and that anywhere from five to seventeen bighorn sheep permits are issued each year. Kofa Bighorn Investigative Report at 19. The majority comments that “the report recommends, without explanation, that hunting be continued in the Refuge.” Maj. Op. at 1038. The Service did explain this. The permits authorize hunting of mature rams only. The Service cited studies showing that “a healthy vigorous herd can be maintained by conservative harvest of mature rams.... ” Kofa Bighorn Investigative Report at 19 (emphasis added). The hunting of mature rams has little effect on the survival of the sheep. After reviewing the Service’s various reports, it becomes apparent that the Service took a comprehensive look at the problem of declining bighorn populations and the various factors that may have contributed to that decline. Then, based on its scientific and technical expertise and drawing on decades of its own and Arizona’s experience in conserving the bighorn in the Kofa, the Service reasonably concluded that supplying water to the bighorn was necessary to ensure the survival of a critical herd. That other factors — predation, translocation, hunting, and human disturbance— might come into play does not discredit the Service’s determination that drought was the critical factor leading to the bighorn’s decline. The majority errs by failing to afford the Service’s scientific determination the special deference it is due. See, e.g., Arizona Cattle Growers’ Ass’n v. Salazar, 606 F.3d 1160, 1167 (9th Cir.2010) (“[W]hen an agency is acting within its expertise to make a scientific determination a reviewing court must generally be at its most deferential.”) (internal quotation marks omitted); Ctr. For Biological Diversity v. Kempthorne, 588 F.3d 701, 707 (9th Cir.2009) (“[High] deference is especially warranted when reviewing the agency’s technical analysis and judgments, based on an evaluation of complex scientific data within the agency’s technical expertise.”) (internal quotation marks and citation omitted). 2 The majority recognizes that the 2007 report was “a thorough, neutral, and sciem tifie assessment of the many factors that contribute to sheep mortality,” but faults it for not “assessing] the factors relative to each other.” Maj. Op. at 1037. Specifically, the majority argues that High Sierra Hikers requires the Service to conduct a side-by-side, comparative analysis of the factors contributing to the bighorn’s decline. Maj. Op. at 1038-39. But nothing in High Sierra Hikers, 16 U.S.C. § 1133(c), or the APA requires a comparison of this kind. In High Sierra Hikers, we interpreted 16 U.S.C. § 1133(d)(5) in the context of the Forest Service’s decision to authorize commercial packers to take groups through a wilderness area. 390 F.3d at 646. We held that the Forest Service’s determination that “packstock was needed to provide access to those people who would otherwise not be able to gain access for themselves or their gear” supported a finding of necessity, but that the Forest Service failed to meet the Act’s requirement of a “specialized” finding of necessity because the Service could authorize commercial services only “to the extent necessary.” Id. at 647 (emphasis in original). Because the Act required that commercial services could be authorized “to the extent necessary” to realize the recreational purposes of the area, the court found that the “Forest Service must show that the number of permits granted was no more than was necessary to achieve the goals of the Act” and that the Service must “articulate why the extent of such packstock services authorized by the permits is ‘necessary.’ ” Id. (emphasis in original). The court emphasized that the language “to the extent necessary” required a more specialized determination, one that balanced the purposes of the Wilderness Area with the antithetical purposes of commercial activity. Because it failed to conduct a specialized finding of necessity — that the licenses were issued “to the extent necessary” — the Service “[a]t best ... failed to balance the impact that the level of commercial activity was having on the wilderness character of the land [and a]t worst ... elevated recreational activity over the long-term preservation of the wilderness character of the land.” Id. Unlike § 1133(d)(5), § 1133(c) does not require a specialized determination of necessity. Section 1133(c) prohibits structures “except as necessary to meet minimum requirements for the administration of the area for the purpose of this chapter.” Without a qualifier on the word “necessary,” I would not interpret the statute as requiring a specialized finding of absolute necessity, as the majority does. See Maj. Op. at 1039 (“Just because [the need for water] affects the sheep’s viability, the Service is not free to create structures addressing [the need for water] without regard to any other variables at play.... [T]he Service must, at the very least, explain why addressing [the need for water] is more important than addressing the other variables and must explain why addressing [the need for water] is even necessary at all.... ”). I see no reason to require the Service to show that improving the bighorn’s access to water at the Yaqui and McPherson tanks is the only way to stop the decline of the bighorn sheep population. Indeed, courts have long rejected interpreting “necessary” to mean “absolutely necessary” or “indispensable;” as the D.C. Circuit has explained: “[Cjourts have frequently interpreted the word ‘necessary’ to mean less than absolutely essential, and have explicitly found that a measure may be ‘necessary’ even though acceptable alternatives have not been exhausted.” Natural Res. Def. Council, Inc. v. Thomas, 838 F.2d 1224, 1226 (D.C.Cir.1988) (citations omitted); see also Sierra Club v. Lyng, 663 F.Supp. 556, 560 (D.D.C.1987) (interpreting § 1133(d)(1) — which permits the agency to take such measures in the wilderness “as may be necessary in the control of ... insects” — to allow the agency “to use measures that fall short of full effectiveness so long as they are reasonably designed to restrain or limit the threatened [insect] infestation”). A determination of absolute necessity would be nearly impossible for scientists and researchers to make and would render meaningless § 1133(c)’s exception to the structure prohibition. Here, the Service took a tried-and-true approach: it looked at the potential impacts on the bighorn population and proposed a comprehensive solution. Rather than trying to isolate a one-size-fits-all solution, the Service moved forward on all fronts. It addressed predators, hunting, translocation, human disturbance, and water structures. The Service recognized that some of its proposals called for immediate action, while others required further study. Thus, for example, the Service did not recommend killing mountain lions, but studying them; it recommended seeking funding for GPS collars, but noted that such collars only “last 1-2 years, which would require frequent recollaring for long term monitoring efforts.” Kofa Bighorn Investigative Report at 14. By contrast, as any denizen of the Southwest knows, obtaining water requires short-term planning, because finding adequate water in the desert is both an immediate and a constant concern. It is thus far from clear that the Service would have had a good basis for comparing the efficacy of mountain lion control with rebuilding the Yaqui and McPherson tanks, and nothing in the Wilderness Act suggests the Service must ignore immediate needs to compare them with long-term proposals. See Lyng, 663 F.Supp. at 560 (“The degree of efficacy of various ... methods [of controlling insect infestation] is not to be debated between various scientists and resolved before this Court. The [agency’s] judgment that the control measures authorized are reasonably efficacious is entitled to respect under[the APA].”). Although the Sex*vice did not do a side-by-side comparative analysis of the various causes of the bighorn’s decline, nothing in the Wilderness Act, the Service’s interpretation of the Act, the APA, or our decisions obligates the Service to conduct its review in that way. In fact, we have eschewed imposing such form on the Service. See High Sierra Hikers, 390 F.3d at 646-47 (“The Wilderness Act is framed in general terms and does not specify any particular form or content for [the Service’s finding of necessity.]”). I would thus decline to hold the Service to a particular form or content to determine necessity. As long as the explanations the Sexvice offered to support its finding of necessity are not implausible, do not omit an important aspect of the problem, and do not run counter to the evidence presented, I would uphold the Service’s finding under the APA. See The Lands Council, 537 F.3d at 993. The majority may not think that the Yaqui and McPherson tanks are necessary, but whether these two water structures are necessary or not is at best debatable. The Plaintiffs may consider bighorn management contrary to the natural order and an affront to the idea of wilderness, but the Service has declared — and the majority today affirms — that preserving bighorn in the Kofa is consistent with the Service’s charge from Congress. See Maj. Op. at 1035-36. Where Congress has placed such decision-making power in the Service, the majority errs by failing to “defer to the informed discretion of the responsible federal agencfy].” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (quotation marks omitted). II Ultimately, the majority concludes “the Service must provide enough evidence and explanation in the record to assure this court that it fully considered [alternative factors for the bighorn’s decline] and nevertheless rationally concluded that new water structures are, in fact, necessary.” Maj. Op. at 1040. I think the Service did just that. But even if I were to agree that the record in this case is “wholly inadequate,” I would not remand this case to the district court “with instructions to determine the appropriate remedy.” Id. When both Supreme Court and circuit precedent mandate a remand to the agency for a more adequate explanation of the agency’s reasoning, an open-ended remand to the district court is but an exercise in futility. The only remedy the district court should consider is remand to the Service for further explanation. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (“[I]f the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.”); Humane Soc’y of the U.S. v. Locke, 626 F.3d 1040, 1053 (9th Cir.2010) (holding that when the agency’s “explanation is incomplete and inadequate to permit meaningful judicial review,” the proper remedy is a remand “to afford the agency the opportunity to ... articulate a reasoned explanation for its action”); see also Seavey v. Barnhart, 276 F.3d 1, 12 (1st Cir.2001) (“When an agency has not considered all relevant factors in taking action, or has provided insufficient explanation for its action, the reviewing court ordinarily should remand the case to the agency.”); Public Power Council v. Johnson, 674 F.2d 791, 794 (9th Cir.1982) (“When there is a need to supplement the record to explain agency action, the preferred procedure is to remand to the agency for its amplification.”) (citation omitted); 3 Charles H. Koch, Jr., Administrative Law and Practice § 8:32 (3d ed. 2010) (“Remand is particularly appropriate where the agency justification is inadequate ... [because] the agency should be given every opportunity to justify its decision.”). For the reasons discussed above, the majority engrafts a new procedural requirement onto the Wilderness Act and the APA. Before building a permanent structure within wilderness, the Service must now make a thoroughly documented, formalized finding of necessity accompanied by the comparative, multi-factor, side-by-side analysis the majority dictates. But even more consequential is the majority’s holding that the Service’s failure to offer an explanation that satisfies the majority’s new criteria is fatal to its case: without creating this judicially-mandated record, the agency’s action is per se arbitrary and capricious. But [t]here is a fine line between agency reasoning that is “so crippled as to be unlawful” and action that is potentially lawful but insufficiently or inappropriately explained. In the former circumstance, the court’s practice is to vacate the agency’s order, while in the later the court frequently remands for further explanation (including discussion of relevant factors and precedents) while withholding .judgment on the lawfulness of the agency’s proposed action. Radio-Television News Directors Ass’n v. F.C.C., 184 F.3d 872, 888 (D.C.Cir.1999); see also Checkosky v. SEC, 23 F.3d 452, 463 (D.C.Cir.1994) (Silberman, J., concurring) (citing some of the “many instances where [the court has] remanded to an agency for a better explanation before finally deciding that the agency’s action was arbitrary and capricious ”) (emphasis added). Nevertheless, the majority concludes the Service’s action was arbitrary and capricious because the Service failed to consider an important aspect of the problem— “namely, the failure to consider whether new water structures are necessary at all.” Maj. Op. at 1039. The majority’s holding rests on the following syllogism: (1) arbitrary and capricious agency actions must be set aside; (2) all inadequately explained agency actions are arbitrary and capricious; (3) therefore, inadequately explained agency actions must be set aside. I disagree with the second proposition of this syllogism; not all inadequately explained agency actions are arbitrary and capricious. The majority’s approach sets aside agency actions even when the reviewing court is unsure of the agency’s reasoning. This assertion, if accepted, would fundamentally alter the role of the judiciary vis-a-vis administrative agencies by forcing courts to decide that the agency’s action is either unlawful or lawful on the first pass, even when the judges are unsure as to the answer because they are not confident that they have discerned the agency’s full rationale. This assertion finds support in neither logic nor precedent. Checkosky, 23 F.3d at 463 (Silberman J., concurring). The majority deflects analysis of the appropriate remedy in this case by giving the district court a choice: on remand, the district court may either require the Service to dismantle the water structures or may remand the matter to the Service for a fuller explanation of the Service’s decision. The problem, of course, is that the majority errs by giving the district court this very choice. See 1 Richard J. Pierce Jr., Administrative Law Treatise § 8.5 (5th ed. 2010) (“If a court concludes that the explanation provided by the agency ... is too terse to allow the court to apply the arbitrary and capricious test, the only remedy authorized by [the Supreme Court] is a remand to the agency for further explanation.”) (emphasis added). Additionally, the majority even hints the Service may have waived its right to object to any remedy other than the dismantling of the structures. See Maj. Op. at 1040 n. 10. I offer just one comment in reply: I find it mind-boggling to think the Service can waive what courts must do. * * * * * * An inescapable theme runs through the Service’s various reports: water is, and historically has been, critical to conserving bighorn populations in the Kofa, and any proposal that does not take account of the herds’ need for additional water sources is unlikely to succeed. In my view, the record in this case clearly indicates the agency conducted a comprehensive analysis of the possible causes for the bighorn’s decline and reasonably decided to address the most pressing cause. Scattered over three reports, the Service’s finding of necessity is not as graceful or as elegant as it could have been. But, unlike judges at a pageant competition, our proper role is not to grade the Service on poise and style. Rather, as the Supreme Court has consistently held, even if the Service does not explain its decision with “ideal clarity,” we must uphold the decision “if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). Here, the Service’s reasoning for redeveloping two critical but previously unreliable water sources can readily be discerned. Because the majority requires the Service to do more than it must do, I dissent. . U.S. Fish & Wildlife Service, Kofa National Wildlife Refuge and Wilderness and New Water Mountains Wilderness Interagency Plan, Environmental Assessment, and Decision Record 35 (1996) [hereinafter Kofa Management Plan ]. . The Service has also discussed the bighorn in more comprehensive studies, such as the 1996 Kofa Management Plan, a more than 100-page management plan that considered, among other things, how the Service could "carry out a dual, but nonetheless interrelated, role of managing for bighorn sheep within the context of wilderness.” Kofa Management Plan at 37. See 16 U.S.C. § 1133(a) (The Wilderness Act is "within and supplemental to the purposes for which ... units of the ... natural wildlife refuge systems are established and administered.”) (emphasis added). Additionally, the Service described its proposed redevelopment of the two tanks in a five-page document, Categoncal Exclusion, Yaqui and McPherson Tanlcs Redevelopment Projects ("Kofa Categorical Exclusion ”). . Water developments in the Refuge have been a longstanding conservation tool of the bighorn sheep in the Kofa area. As early as 1937, refuge managers were discussing water developments and predator control as methods to conserve the population. David Brown, Early History, in The Desert Bighorn Sheep in Arizona 7 (Raymond M. Lee, ed., 1993). Since the 1950s, the AGFD helped develop over 100 water sources for bighorn sheep, and in 1968 non-profit organizations began coordinating volunteers who offered to improve and maintain sheep water sources in cooperation with Arizona and the federal government. Kofa Management Plan at 38; see also William Werner, Water Development, in The Desert Bighorn Sheep in Arizona at 163. . The location of these tanks was critical because the "optimum water distribution” for the bighorn is two miles. William Werner, Water Development, in The Desert Bighorn Sheep in Arizona at 164. "[G]ood distribution of water” helps disperse the sheep, reducing stress and disease transmission. Id. . Once the Service concluded that additional water structures were necessary for the recovery of the bighorn, the Service took great care to preserve the wilderness character of the land. The Service’s respect for wilderness can be seen both from the locations chosen for the two water structures and from the manner in which the Service redeveloped the Yaqui and McPherson tanks. First, most of the redeveloped Yaqui tank is located just outside wilderness — indeed, only two or three "substantially unnoticeable” water diversion weirs are located on wilderness land — while the redeveloped McPherson tank is located inside wilderness, but within 0.1 miles of a designated road. Kofa Categorical Exclusion at 5. These strategic locations show that the Service sought to minimize intrusions on wilderness land. Second, the Service completed the work in three days, removed tracks left by workers and vehicles, covered visible portions of the water structures to blend them into the natural habitat, and replanted nearby plants. These efforts show the Service restored, as much as possible, the wilderness character of the land. . For example, the Service found that "[s]evere drought conditions in 1996 and 2002 were likely causes for the bighorn population dips observed on the 1997 and 2003 aerial population surveys.” Kofa Bighorn Investigative Report at 7. This finding was unsurprising because "extreme ambient temperatures, reduced moisture content of forage, and mating activities necessitate additional water intake, and thus [create] a dependence on reliable water sources.” Id. at 8. The Service explained that, in addition to being "a critical habitat variable for desert bighorn, especially during summer months when temperatures can reach 120 [degrees],” water distribution affects other mortality factors for the bighorn sheep: "[d]isease in bighorn sheep is most prevalent when animals are stressed and during severe drought.” Id. at 8, 15. The report concluded that, because of water's critical role in preventing mortality, "a better distribution of permanent water supplies [was] needed.” Id. at 9. . The Wilderness Act generally prohibits commercial enterprises in the wilderness area, but authorizes commercial services within wilderness areas “to the extent necessary for activities which are proper for realizing the recreational or other wilderness purposes of the areas.” 16 U.S.C. § 1133(c), (d)(5). . The practical effect of the majority’s decision — requiring the Service to show that nothing but these additional water structures will help the sheep recover — subverts the majority's disclaimer that it “in no way hold[s] that the Service must make a finding of absolute necessity.” Maj. Op. at 1037 n. 8. . Most obviously, the Supreme Court in McCulloch v. Maryland, 17 U.S. (14 Wheat.) 316, 4 L.Ed. 579 (1819), rejected interpreting the word "necessary” in the Necessary and Proper Clause to mean "always importing] an absolute physical necessity, so strong, that one thing to which another may be termed necessary, cannot exist without that other” and instead found that the word “import[ed] no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable.” Id. at 413—14; see also Stenbergv. Carhart, 530 U.S. 914, 937, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000) (explaining that the word "necessary” in Planned Parenthood of Southeastern Pennsylvania v. Casey's "phrase 'necessary, in appropriate medical judgment, for the preservation of the life or health of the mother' ... cannot refer to an absolute necessity or to absolute proof”). Other courts have followed suit. In Cellular Telecomm. & Internet Ass'n v. F.C.C. 330 F.3d 502, 510 (D.C.Cir.2003), the court deferred to the FCC Commissioner's interpretation of "necessary” in 47 U.S.C. § 160(a), a statute allowing the FCC to forbear enforcing a regulation or a statutory provision if certain conditions are met. The court defined necessary as "that which is required to achieve a desired goal” and found that the term "does not foreclose a particular means to an end merely because other means are hypothetically available to achieve the desired end.” Id. Similarly, in Inbesa America, Inc. v. M/V Anglia, 134 F.3d 1035, 1036 (11th Cir.1998), the court stated that in order for a federal court to have admiralty jurisdiction over a contract, the elements of the contract must "pertain directly to and be necessary for commerce or navigation upon navigable waters.... The test we apply in deciding whether the subject matter of a contract is necessary to the operation, navigation, or management of a ship is a test of reasonableness, not of absolute necessity.” Id. (omission in original). In In re Mile Hi Metal Sys., Inc., 899 F.2d 887, 892-93 (10th Cir.1990), the court held that the term "necessary modifications” in the context of a collective bargaining agreement under 11 U.S.C. § 1113(b)(1)(A), "does not mean absolutely necessary” to the debtor’s reorganization but must be "more than potentially helpful.” And in Southland Royalty Co. v. United States, 217 Ct.Cl. 431, 582 F.2d 604, 605 (Cl.Ct.1978), the court interpreted "necessary” under 26 U.S.C. § 162(a), which allows a deduction for "all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.” The court held, "[a]n expense satisfies the requirement of being 'necessary' within the statute if it is 'appropriate and helpful' 'to the development of the taxpayer’s business.' ” Id.

Friends of the Boundary Waters Wilderness v. Bosworth

BYE, Circuit Judge. The defendants and intervenor defendants, collectively referred to as the United States Forest Service (USFS), appeal the district court’s grant of summary judgment to the plaintiffs, collectively referred to as the Friends of the Boundary Waters (Friends). Specifically, the USFS appeals the district court’s ruling the USFS did not have authority to recalculate the average actual annual motorboat use during 1976-78 within certain lake chains of the Boundary Waters Canoe Area Wilderness (BWCAW) to include uses improperly excluded from its initial base period calculation. The USFS also appeals the district court’s alternate finding the recalculation was arbitrary and capricious. We affirm in part and reverse in part. I A The BWCAW was one of the first wilderness areas recognized under the Wilderness Act of 1964. 16 U.S.C. §§ 1131— 36 & note. As the largest wilderness area east of the Rocky Mountains and north of Everglades National Park, it comprises approximately 1,080,300 acres of forest land encompassing over 1,175 lakes connected by several hundred miles of streams and rivers. See Minnesota v. Block, 660 F.2d 1240, 1247 (8th Cir.1981). It provides habitat for hundreds of species, including the gray wolf, pine marten, bald eagle, black bear, moose, and lynx. The Wilderness Act generally prohibits all motorboat use within wilderness areas protected by the Act. However, the BWCAW was excepted from this general prohibition insofar as established motorboat use within the BWCAW and other motorboat use not undermining the ability to maintain the “primitive character of the area” were permitted. 16 U.S.C. § 1133(d)(5) (1976). In 1978, however, Congress reconsidered the BWCAW exception to the Wilderness Act. “[I]n reaction to threatened deterioration of the wilderness from excessive use,” Congress enacted the Boundary Waters Canoe Area Wilderness Act, Pub.L. No. 95-495, 92 Stat. 1649 (BWCAW Act). See also Block, 660 F.2d at 1246. The BWCAW Act prohibited all motorboat use within the BWCAW except on specifically enumerated lakes comprising approximately one-quarter of its waters. The motorboat use allowed by the BWCAW Act is circumscribed: the Secretary of Agriculture is directed to establish motorboat quotas restricting use to less than or equal to the “average actual annual motorboat use of the calendar years 1976, 1977, and 1978.” BWCAW Act § 4(f). The quota levels are “based on such criteria as the size and configuration of each lake, and the amount of use on that lake.” Id. In determining the “average actual annual motorboat use,” motorboat use by “lake homeowners and their guests and resort owners and their guests on that particular lake” is not counted. Id. The BWCAW Act was passed to ensure the BWCAW’s wilderness character would be preserved. See Block, 660 F.2d at 1250 (“Congress passed the BWCAW Act with the clear intent of insuring that the area would remain as a wilderness and could be enjoyed as such.”). Limiting motorboat use is integral to preserving the wilderness values and primitive character of the area. See United States v. Gotchnik, 57 F.Supp.2d 798, 804 (D.Minn.1999), affd, 222 F.3d 506 (8th Cir.2000). B In 1981, the USFS initially calculated the “average actual annual motorboat use.” In doing so, the USFS considered computer data and analyses, wilderness permit data, records of motorboat use during 1976-78, public comments, and interviews. For three chains of lakes-the Moose Lake Chain, the Saganaga Lake Chain, and the Farm Lake Chain-the USFS deemed use by home and resort owners (as well as their guests) within the lake chain encompassing their property to be exempt from the base period use calculation. The USFS determined the Moose Lake Chain encompassed Moose, Sucker, Newfound, and Birch Lakes; the Saganaga Lake Chain included Saganaga Lake, Seagull River, and Gull Lake; and the Farm Lake Chain included White Iron, Farm, Garden, and South Farm Lakes. Accordingly, the USFS concluded motorboat use by homeowners, resort owners, and their guests did not affect the base period use calculation or quota system and did not require permits when such use was limited to then-lake chain. The USFS calculated the base period day use — as opposed to overnight use — as 14,925 day trips for the BWCAW. The base period use calculated for the three lake chains at issue was 3,205 day trips. In 1993, the USFS determined allowing motorboat use to the maximum extent possible under the statute was “strain[ing] the wilderness environment and [was] tending to degrade the intended primitive and unconfined recreation experience” of the BWCAW. It therefore established the Boundary Waters Canoe Area Wilderness Management Plan and Implementation Schedule of 1993 (1993 BWCA Plan) to set the motorboat day-use quotas at approximately seventy-five percent of the base period use calculation. The motorboat day-use permit quota was set at 7,902 permits for the entire BWCAW. The day-use permit quota for the three lake chains was set at 2,376 day-use permits. One day-use permit can accommodate a group of up to four boats or multiple trips in one day. Admin. R. (A.R.) Exh. 14, at 82. In 1999, this court concluded the USFS’s interpretation that homeowner, resort, and guest lake chain use did not require a permit was contrary to the plain language of the BWCAW Act. Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1124-25 (8th Cir.1999). The court concluded the term “particular lake” in the BWCAW Act did not mean a lake chain but referred to each individually-named lake. Id. Accordingly, Dombeck held use by homeowners, resort owners, and their guests is exempted from a permit requirement only when such use is limited to the lake adjoining the owners’ properties. Use on any other lake requires a permit. Because the USFS did not include homeowner, resort, or guest non-exempt lake chain use when initially calculating the base period use, the quotas established by the USFS did not account for nonexempt lake chain use. Given the fixed quotas, the Dombeck ruling increased demand for permits as homeowners, resorts, and guests were required to obtain permits for non-exempt lake chain use. In 2002, the USFS responded to this increased demand by recalculating the base period use and correlated quotas to include non-exempt lake chain use. The recalculated base period use figures for the entire BWCAW establish a maximum quota of 15,999 day-use permits. The USFS applied the 1993 BWCA Plan to establish quotas at seventy-five percent of the recalculated base period use. Accordingly, pursuant to the 1993 BWCA Plan, the recalculated total quota for the three lake chains at issue is 6,892 day-use permits. Friends challenged the recalculated base period use figure, arguing the USFS lacks authority to recalculate the base period use and the recalculation was arbitrary and capricious. Friends also challenged USFS’s recalculated quotas as exceeding the base period use in violation of the BWCAW Act. The district court agreed with Friends, ruling at summary judgment the USFS was without authority to recalculate the base period use and the recalculation was arbitrary and capricious. The district court did not reach Friends’ challenges to the quotas established by the USFS. II A We review de novo a district court’s grant of summary judgment, applying the same legal standards used by the district court. Voyageurs Nat’l Park Ass’n v. Norton, 381 F.3d 759, 763 (8th Cir.2004). Summary judgment is proper when there is “no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Employers Mut. Cas. Co. v. Wendland, 351 F.3d 890, 893 (8th Cir.2003). “We may affirm the district court’s grant of summary judgment ón any ground supported by the record.” Woods v. Daimler-Chrysler Corp., 409 F.3d 984, 990 (8th Cir.2005). We view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. In re Derailment Cases, 416 F.3d 787, 792 (8th Cir.2005). An issue of fact is genuine when a “reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, “[t]he nonmoving party may not rest on mere allegations or denials, but must show a genuine issue of material fact (or that the movant is not entitled to judgment).” Wenzel v. Mo.Am. Water Co., 404 F.3d 1038, 1039 (8th Cir.2005) (internal quotation omitted). B Judicial review of federal agency administrative decisions is, unless expressly stated otherwise, governed by the Administrative Procedures Act (APA). 5 U.S.C. § 706; In re Sac & Fox Tribe of Miss, in Ia/Meskwaki Casino Litig., 340 F.3d 749, 755 (8th Cir.2003). Under the APA, an agency administrative decision may be set aside only if it is “arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), “in excess of statutory ... authority,” id. § 706(2)(C), or “without observance of procedure required by law.” Id. § 706(2)(D). However, we are “not obliged to stand aside and rubber-stamp [the district court’s] affirmance of administrative decisions that [we] deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.” Nat’l Labor Relations Bd. v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965). “When reviewing an agency’s construction of a statute, the court first considers whether the intent of Congress is clear; if so, the court’s inquiry is over, ‘for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.’ ” Dombeck, 164 F.3d at 1121 (quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)); see also Cuadra v. Gonzales, 417 F.3d 947, 950 (8th Cir.2005). Where Congress has explicitly or implicitly left a gap in a statute to be filled by a particular agency, the agency’s interpretations of the statute having the force of law are entitled to substantial deference under Chevron. United States v. Mead Corp., 533 U.S. 218, 230, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). Chevron deference requires courts to give “considerable weight ... to an executive department’s construction of a statutory scheme it is entrusted to administer.” Chevron, 467 U.S. at 844, 104 S.Ct. 2778. This considerable weight has been interpreted by the Eighth Circuit to mean controlling weight unless “arbitrary, capricious, or manifestly contrary to the statute.” In re Old Fashioned Enters., Inc., 236 F.3d 422, 425 (8th Cir.2001). Even where an agency is accorded deference, the “agency must provide a satisfactory explanation for its actions based on relevant data.” Niobrara River Ranch, L.L.C. v. Huber, 373 F.3d 881, 884 (8th Cir.2004). This requires an analysis of whether the decision was “based upon consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). If an agency’s decision to which deference is afforded may be supported on any rational basis, we must uphold it. Voyageurs Nat’l Park Ass’n, 381 F.3d at 763; Sw. Bell Tel. Co. v. Fed. Comm. Comm’n, 153 F.3d 523, 554 (8th Cir.1998) (“If an agency ... does not attempt either to close itself off from informed opinion or to extend its reach beyond the scope of permissible authority, then it is our duty to accept that judgment if it is rational and not unreasonable.”). Therefore, even if the agency’s underlying data are flawed, substantial deference requires the ruling be reversed only if “ ‘there is a significant chance that but for the errors the agency might have reached a different result.’ ” Cent. S.D. Co-op. Grazing Dist. v. Sec’y of the United States Dep’t of Ag., 266 F.3d 889, 899 (8th Cir.2001) (quoting Dombeck, 164 F.3d at 1129). Because an agency’s choice of methodology is typically borne out of the agency’s expertise, we defer to an agency’s choice of methodology so long as it is not arbitrary or without foundation. See Dombeck, 164 F.3d at 1130 (citing Minn. Pub. Interest Res. Group v. Butz, 541 F.2d 1292, 1302 (8th Cir.1976)). A decision is arbitrary or capricious if the agency 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 contrary 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. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Ill A The USFS appeals the district court’s ruling it had no authority to recalculate the base period use. The USFS argues Dombeck requires the USFS to recalculate the base period use to ensure Congress’s intent in passing the BWCAW Act is fulfilled. The USFS interprets the BWCAW Act to give it the authority to correct a major error in its initial base period calculation made evident by a court ruling. Friends argues Dombeck does not require the USFS to recalculate the base period use and also argues that any recalculation of the base period use calculation effectively undermines the fixed nature of the quota maximum. The USFS’s interpretation of Dombeck is not entitled to deference. See Ass’n of Civilian Technicians v. Fed. Labor Rel. Auth., 353 F.3d 46, 50 (D.C.Cir.2004); Donovan v. Anheuser-Busch, Inc., 666 F.2d 315, 326 (8th Cir.1981). We agree with Friends Dombeck does not mandate the USFS to recalculate the base period use, since its holding was limited to requiring a permit for homeowners and resorts when they engage in non-exempt lake chain use. Dombeck, 164 F.3d at 1124-25. However, our analysis does not end there. The USFS also interprets the BWCAW Act as authorizing it to recalculate the base period use. Accordingly, we must analyze this agency interpretation for reasonableness. In determining whether to afford deference to the USFS’s interpretation of the BWCAW Act, we must first determine whether the congressional intent is clear. Specifically, we must determine whether Congress intended the USFS to have the authority to recalculate the statutory cap based upon legal error. See Chevron, 467 U.S. at 842-43. The BWCAW Act prohibits the use of motorboats within the BWCA except as specifically authorized by the Act. BWCAW Act § 4(c), 92 Stat. at 1650. The Act does not directly address whether the USFS has authority to recalculate the “average actual annual motorboat use of the calendar years 1976, 1977, and 1978 for each lake.” We have not been directed to any legislative history materials directly addressing the issue. Agencies given the authority to promulgate a quota are presumed to have the authority to adjust that quota. See United Gas Improvement Co. v. Gallery Props., Inc., 382 U.S. 223, 229, 86 S.Ct. 360, 15 L.Ed.2d 284 (1965) (“An agency, like a court, can undo what is wrongfully done by virtue of its order.”); see also Regions Hosp. v. Shalala, 522 U.S. 448, 457-58, 118 S.Ct. 909, 139 L.Ed.2d 895 (1998) (concluding an agency decision to recalculate a base amount in a fixed reimbursement system to prevent the distortion of future reimbursements was reasonable); Dun & Bradstreet Corp. Found. v. United States Postal Serv., 946 F.2d 189, 193 (2d Cir.1991) (“It is widely accepted that an agency may, on its own initiative, reconsider its interim or even its final decisions, regardless of whether the applicable statute and agency regulations expressly provide for such review.”);. The BWCAW Act creates a gap which must be filled by the USFS (or, more precisely, by the Secretary of Agriculture): the determination of the “average actual motorboat use of the calendar years 1976, 1977, and 1978.” The USFS is given no significant direction regarding this calculation. See Dombeck, 164 F.3d at 1122. Accordingly, the statute is silent on the issue and we must accord the USFS deference to its interpretation of the statute. USFS’s interpretation that the BWCAW Act allows it to recalculate the base period use to correct a major error made manifest by court opinion is reasonable and not contrary to the purposes of the BWCAW Act. The USFS recalculated the base period use as a means of addressing the increased permit demand after the Dombeck ruling. The purpose of the BWCAW Act is to protect the wilderness values of the BWCAW while maintaining limited motorized access not inconsistent with those values. See Dombeck, 164 F.3d at 1122-23. Indeed, the purpose of the BWCAW Act is to establish a maximum level of motorboat use based upon use patterns in 1976-78. The USFS recalculation, if performed accurately, would not result in a base period use calculation higher than the “average actual annual motorboat use of the calendar years 1976, 1977, and 1978.” Rather, if performed accurately, it would produce the actual use figure contemplated by the legislature in passing the BWCAW Act. The USFS therefore acted reasonably and not contrary to the purposes of the statute when it recalculated the base period use to include uses previously excluded because of significant legal error made apparent by a court ruling. As such, the USFS’s reasonable interpretation must be upheld whether afforded deference under Skidmore v. Swift & Co., 328 U.S. 134, 139-40, 65 S.Ct. 161, 89 L.Ed. 124 (1944), or Chevron. Accordingly, the judgment of the district court as to the issue of the USFS’s authority to recalculate the base period use is reversed. B Having determined the USFS has authority to recalculate the base period use to correct a significant legal error made manifest by court order, we now must determine whether the USFS recalculated the base period homeowner and resort use arbitrarily, capriciously, or in a manner contrary to its statutory authority. The USFS claims “the specific means of implementing motorboat use quotas is left to the discretion of the Secretary.” Appellants’ Reply at 7 (citing Dombeck, 164 F.3d at 1121). The USFS also argues because “[t]he methodology was tailored to the USFS’s knowledge of, and the best available information regarding, varying patterns of motorboat use within the three lake-chains, ... that methodology is entitled to deference.” Appellants’ Br. at 31. While the methodology used by an agency is generally entitled to deference, this is only true where the methodology is not arbitrary, without foundation, or “so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” See Dombeck, 164 F.3d at 1130; State Farm Mut. Auto. Ins. Co., 463 U.S. at 43, 103 S.Ct. 2856. It is our view that some of the data relied upon and calculations performed by the USFS are so unreliable or inadequately explained as to make reliance on them arbitrary and capricious. The USFS, in recalculating the base period use, sought to determine the amount of non-exempt lake chain use. To do this, the USFS first estimated total homeowner and resort lake chain use. The USFS then estimated what percentage of such use was non-exempt lake chain use. Because the USFS relied upon different data and methodologies for each lake chain recalculation, we analyze the USFS’s calculations with respect to each lake chain separately. 1 We begin by analyzing the recalculated base period use on Moose Lake Chain. We conclude the USFS recalculated the Moose Lake Chain base period use in an arbitrary and capricious manner. In calculating what percentage of use during the base period was non-exempt lake chain use, the USFS relied upon deficient homeowner and resort owner surveys. The USFS acknowledges the surveys were not conducted in a statistically valid manner. However, it claims the surveys were adequate for the purposes for which they were used: to supplement other data or to reduce use estimates from other data sources. Accordingly, we must determine whether the USFS’s rebanee upon the survey results was reasonable. We conclude it was not. Based upon aerial photographs from 1982, the USFS concluded sixty-two residences (sixteen of which were resort residences or staff cabins) existed on Moose Lake during the base period. The survey data relied upon by the USFS was obtained from a 1999 survey completed by thirteen homeowners on Moose Lake. The USFS limited its survey to current owners of Moose Lake properties who maintained ownership since the base period. The survey respondents were aware the survey was related to the USFS’s recalculation of the base period use. The survey asked two questions of property owners. The survey asked of 1998 use: “How many days did you use your stickered motorized watercraft in the BWCAW on Moose, Sucker, and Newfound [Lakes]?” Of 1978 use, the questionnaire asked: “What percentage of your motorized watercraft use in the BWCAW was for accessing Basswood, Birch, and/or Knife [Lakes]?” Only five of the thirteen survey respondents provided answers to the survey question pertaining to 1978 motorboat use. Those responses varied greatly by individual. We conclude the survey design and implementation was so inadequate as to make any reliance upon the data obtained from the survey unreasonable. To establish the trustworthiness of a survey, it must be shown: (1) that a proper “universe” was examined and a representative sample was chosen; (2) that the persons conducting the survey were experts; (3) that the ■ data were properly gathered and accurately reported; [and] (4) that the sample design, the questionnaires, and interviewers, as well as the respondents, were unaware of the purpose of the survey. Lutheran Mut. Life Ins. Co. v. United States, 816 F.2d 376, 378 (8th Cir.1987). Although mechanical application of these factors may not be appropriate in every case, see id., we are of the opinion the uses to which the survey results were put by the USFS counsel in favor of a more trustworthy survey. The design of the survey was flawed for a number of reasons.' First, there is no record evidence the USFS considered various sample populations to determine which respondents, if any, would provide accurate and representative results. There is no record evidence the USFS contemplated surveying property owners during the base period who have since transferred title or conducting other surveys to obtain more robust survey data. Given the significant variation in the survey responses, we find it unreasonable for the USFS to rely upon the responses of only five current homeowners without considering other means, including performing additional interviews or surveys, to validate the responses. Although the USFS attempts to justify its reliance by suggesting its approach is similar to statistically valid surveys involving a small percentage of the total population, this argument lacks merit. There is a substantial difference between relying upon survey data results from thousands of responses and relying upon five responses. Indeed, the USFS acknowledges its survey was not statistically valid. While this does not invalidate the possibility of using survey data, it cautions the agency to identify the potential weaknesses in the data and to seek validation of the results obtained through other means or to apply correction factors to the survey data. See Menorah Med. Ctr. v. Heckler, 768 F.2d 292, 295-96 (8th Cir.1985) (noting the failure to respond to criticisms that a survey was untrustworthy makes reliance upon the survey arbitrary and capricious); see also St. James Hosp. v. Heckler, 760 F.2d 1460, 1467 n. 5 (7th Cir.1985) (“[I]t is an agency’s duty to establish the statistical validity of the evidence before it prior to reaching conclusions based upon that evidence.”). Second, neither Basswood nor Knife Lake was considered part of the Moose Lake Chain in the USFS’s initial base period calculation; the lakes had their own quotas. Birch Lake is considered part of Moose Lake, but motorized access to Birch Lake ended in 1984 and the Moose Lake Chain quota was reduced accordingly. Accordingly, the percentage of motorized use on Basswood, Birch, and Knife lakes is irrelevant to the recalculation of the base period use on the Moose Lake Chain, as adjusted for closures to motorized access pursuant to the BWCAW Act. Nevertheless, based upon answers to the second question, the USFS concluded thirty-one percent of BWCAW use was located outside the Moose Lake Chain. This conclusion cannot be reasonably drawn from the survey results because it is dependent upon an incorrect determination Birch Lake exists outside the Moose Lake Chain. Further, the question does not consider the possibility use occurred outside the Moose Lake Chain to lakes other than Basswood, Birch, or Knife. We therefore find the USFS’s conclusion that thirty-one percent of BWCAW use by Moose Lake Chain resort and home owners was outside the Moose Lake Chain to be arbitrary and capricious. Similarly, the USFS’s correlated conclusion sixty-nine percent of BWCAW use by Moose Lake Chain resort and home owners during the base period was within the Moose Lake Chain must be re-examined. The conclusion is questionable because, assuming arguendo the accuracy of the figure, it may not be reasonable to conclude all use on the Moose Lake Chain was nonexempt lake chain use. The record evidence clearly establishes some Moose Lake Chain homeowner use was limited to Moose Lake. A.R. Exh. 61, at 3. The USFS did reduce by thirty-one percent its estimated actual use figure for the Moose Lake Chain, but that reduction was based on survey results for use on Bass, Birch-wood, and Knife lakes, not based on use of Moose Lake only. Thus, the USFS’s conclusion all use on the Moose Lake Chain was non-exempt lake chain use is unsupported by the record. Aside from the survey design flaws and the arbitrary conclusions resulting therefrom, the survey was also performed in a manner to make the results unreliable. In particular, we find it unreasonable to rely exclusively upon survey results, without analyzing the potential for bias or adjusting the data based upon any bias found, when the respondents are aware of the purpose of the survey. See Lutheran Mut. Life Ins. Co., 816 F.2d at 378; Menorah Med. Ctr., 768 F.2d at 295-96; St. James Hosp., 760 F.2d at 1467 n. 5. Further, it is unreasonable to rely upon survey responses regarding behavior twenty years earlier without considering the possibility such responses are not wholly accurate and either applying correction factors to the responses determined to be less than wholly accurate or attempting to verify the responses through other means. We are especially troubled by the USFS’s complete reliance upon the survey data, without even studying the results for possible inaccuracies, in spite of the fact only five of the thirteen respondents answered the survey question regarding use patterns in 1978. We agree with the district court that “[o]ne does not need to be a statistician to apprehend the numerous flaws in this sample.” Friends of the Boundary Waters Wilderness v. Bosworth, 2004 WL 2066848, at *10 (D.Minn. Aug. 26, 2004). Sample size, potential for bias, interviewing techniques, reliability of extrapolating data, and poor recollection are all relevant factors the agency failed to properly consider in analyzing the survey results, making the resulting estimates arbitrary and capricious. We believe these survey deficiencies are so obvious the USFS should have considered the potential impact these deficiencies might have on the trustworthiness of the surveys. Its failure to do so renders reliance upon the survey results arbitrary and capricious. See Menorah Med. Ctr., 768 F.2d at 295-96. Further, the survey results did not support the conclusions the USFS drew from them. We therefore conclude the USFS’s recalculation of non-exempt Moose Lake Chain use during the base period was arbitrary and capricious. 2 The USFS non-exempt Saganaga Lake Chain use calculations are also arbitrary and capricious or otherwise lack foundation. The USFS determined, based primarily upon Cook County records, there were thirty-four residences on Seagull River and Gull Lake within the Saganaga Lake Chain in 1976-78. Eight of these residences were resort residences or resort crew cabins. In 1981, the USFS assumed 512 day-use permits were attributable to exempt use. In its recalculation, the USFS does not use the figure from 1981, but arrives at a new estimate by relying on USFS records showing an average of fifteen trips per household per season, multiplying that number by a total of thirty-four homeowners, and then adding an estimated 883 trips by resort guests. It is unclear whether the figure 512 applied in 1981 represented use by homeowners only or use by a combination of homeowners and resort guests. We conclude that before the USFS may discard the apparent assumption from 1981 that exempt use amounted to 512 day-use permits, it must explain adequately how the 512 figure relates to its current analysis or why the original figure should be discarded. Even more troubling is the fact the USFS justifies its recalculation by stating: “it is unsurprising that the estimated use of Saganaga Lake by the affected parties of 1,622 is much greater than the number of permits attributed to them because most exempt users did not get day-use permits.” The USFS points to no record evidence suggesting the USFS attempted to ascertain what percentage of homeowners or other exempt users did not obtain day-use permits when traveling either on their particular lake or when engaged in non-exempt lake chain use. Accordingly, the USFS claim most “exempt users did not get day-use permits” presently lacks foundation. The USFS’s recalculated resort non-exempt lake chain use must also be set aside because it relies upon unreliable and faulty survey data. The USFS validated its estimate that resort guests and staff used Saganaga Lake six days per week with interviews of one former resort owner, two current resort owners, and one former neighbor. Viewing this data in the light most favorable to the USFS, we conclude the data is insufficiently reliable to justify disregarding, without adequate explanation, its prior calculation, which was made closer in time to the base period and formed the basis for the Saganaga Lake Chain quotas for twenty years, that approximately forty percent of occupied resort sites used Saganaga Lake daily. A.R. Exh. 86, at 25; see Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Svcs., -U.S. --,-, 125 S.Ct. 2688, 2699, 162 L.Ed.2d 820 (2005) (holding a reversal of a longstanding agency position requires adequate justification to avoid being arbitrary and capricious); Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417, 113 S.Ct. 2151, 124 L.Ed.2d 368 (1993) (providing considerably less deference to agency reversals of position than to longstanding agency views). For the reasons stated above, we conclude the USFS’s recalculation of homeowner and resort non-exempt Saganaga Lake Chain use was arbitrary and capricious. 3 The USFS’s recalculated base period use for the Farm Lake Chain is similarly arbitrary and capricious and must be set aside. Although the USFS claims it “considered use patterns particular to home and resort owners in the different lake areas in making its estimates,” the USFS did not adequately explain its extrapolation of Moose Lake Chain use data to the Farm Lake Chain. Indeed, the record establishes South Farm Lake was fished approximately one fourth as often as Moose Lake. A.R. Tab C. Further, it is unclear from the record whether Farm Lake Chain homeowners located outside the BWCAW (only South Farm Lake is located within the BWCAW) were included in the USFS’s initial base period use calculation for the Farm Lake Chain. That is, we cannot determine from the record whether the USFS, in its initial calculation, considered Farm Lake Chain homeowners located outside the BWCAW exempt from the quota system. Similarly, the USFS’s recalculation of non-exempt resort Farm Lake Chain use is arbitrary and capricious. The USFS concluded resorts in the Farm Lake Chain were not entirely focused on BWCAW use. Accordingly, the USFS interviewed three resorts and extrapolated the results obtained to the four resorts having exempt permits in 1998. The three interviewed resorts had capacities of 4 rental units, 12 rental units, and 13 rental units, and estimated motorboat use per week of 2 days, 7 days, and 39 days, respectively. The complete reliance upon such limited survey data to determine resort use on the Farm Lake Chain, without study to determine the reliability of the results obtained, is arbitrary and capricious. Given the wide variety of responses, we find it troubling the USFS did not interview the fourth resort regarding its use of South Farm Lake or attempt to validate the responses in any way. For the foregoing reasons, we conclude the USFS’s recalculation of the base period motorboat use within the Farm Lake Chain was arbitrary and capricious. Because we conclude the USFS recalculated the base period homeowner and resort motorboat use on the Moose, Sagana-ga, and Farm Lake Chains in an arbitrary and capricious manner, we affirm the district court on these issues. C Friends also challenges the USFS’s recalculation of the towboat quotas. The towboat quotas are separate from the homeowner and resort motorboat quotas, though total motorboat use by homeowners, resorts, their guests, and towboats cannot exceed the base period use. See Dombeck, 164 F.3d at 1121-22. The USFS has the responsibility of allocating motorboat use among homeowners, resorts, guests, and towboats in a manner consistent with the BWCAW Act. Currently, the towboat quota occupies the space between the maximum homeowner and resort quota and the base period quota maximum. See A.R. Exh. 47, at 63. That is, towboats are allowed to the extent their use, when added to the homeowner, resort, and guest use, does not exceed the base period use. The record is not clear as to whether towboats were included in the original base period use. See A.R. Exh. 53, at 2; A.R. Exh. 81, at 3. The USFS must explain adequately why it concludes towboat use was exempted or otherwise not counted during the 1981 calculation of actual use before it undertakes any future recalculation of towboat use. D Although the district court did not reach this issue, both parties agree judicial economy is best served by our ruling on the USFS’s adjusted motorboat quotas based upon its recalculated base period use. We agree there is no need to remand this issue to the district court for initial determination. Having determined the USFS improperly recalculated the base period use, we conclude the USFS must recalculate the quotas consistent with BWCAW Act and the views expressed herein. IV We reverse the district court insofar as we conclude the USFS has authority to recalculate the base period use to correct a significant legal error made manifest by the Dombeck ruling. We affirm the district court by concluding the USFS’s homeowner and resort non-exempt lake chain use recalculation for the Moose, Sa-ganaga, and Farm Lake Chains was arbitrary and capricious. We remand to the district court with directions to remand to the USFS for a recalculation of the base period use and motorboat quotas consistent with the BWCAW Act and the opinion. The agency should do so at the earliest practicable time and include the Friends, Conservationists with Common Sense, and other affected parties in the rule-making process. . The lakes included Fall Lake, Newton Lake, Moose Lake, Newfound Lake, Sucker Lake, Snowbank Lake, East Bearskin Lake, South Farm Lake, Trout Lake, Saganaga Lake, and Basswood Lake. See Block, 660 F.2d at 1246 n. 9 (citing BWCAW Act § 4(c)). Motorboat use was phased out on other lakes by 1999. See id. . The "average actual annual motorboat use of the calendar years 1976, 1977, and 1978,” or base period calculation, establishes the maximum number of permits USFS may issue. The USFS may establish permit quotas lower than the base period calculation but may not establish quotas allowing more use than during the base period. . Only five of these lakes are located at least partially within the BWCAW and still allow motorboat use: Moose, Newfound, Sucker, Saganaga, and South Farm Lakes. . This includes 837 for Moose Lake Chain, 345 for Farm Lake Chain, and 2,023 for Saga-naga Lake Chain. . This figure is lower than seventy-five percent of the base period use calculation because it also reflects the reduction in permits resulting from phase outs of motorboat use on various lakes within the lake chains. . For purposes of this opinion, any lake adjoining the property owned by a homeowner or resort on which use by a homeowner, resort, or guest is considered exempt under Dombeck shall be referred to as the "particular lake” or "adjoining lake.” Use on any other lake within a lake chain encompassing such "particular lake” shall be referred to as "non-exempt lake chain use.” . This is an increase of 5,830, or 3,045 for the Moose Lake Chain; 1,393 for the Saganaga Lake Chain; and 1,392 for the Farm Lake Chain. . This constitutes an increase of 4,516, or a 290% increase over the previously calculated 1993 quota levels for the three lake chains. The resulting quotas are: 2,895 for the Moose Lake Chain; 2,653 for the Saganaga Lake Chain; and 1,344 for the Farm Lake Chain. . The USFS argues "[i]t seems unlikely that better results would be obtained by going back now to the same sources with a different interview form, after years of litigation and explication of the methodology.” Although the history and prominence of this litigation within the BWCAW and knowledge of the surveys previously conducted might affect the reliability of future surveys, this concern neither eliminates the possibility of estimating base period use through means other than surveys, additional interviews, or both. Accordingly, such a concern is insufficient to support the USFS's reliance upon the flawed survey data.

High Sierra Hikers Ass'n v. Blackwell

HUG, Circuit Judge. Plaintiffs, High Sierra Hikers Association, et al. (collectively “High Sierra”) brought the present suit against the United States Forest Service (“Forest Service”) seeking declaratory and injunctive relief for management practices in the John Muir and Ansel Adams Wilderness Areas. Plaintiffs are nonprofit organizations dedicated to conservation, education, and wilderness protection. Each organization has members who use the Ansel Adams and John Muir Wilderness Areas for various recreational activities. Their standing to bring this action is uncontested. Pursuant to the parties’ stipulation and consent, the case was referred to U.S. Magistrate Judge Elizabeth D. Laporte. This case reaches this court on appeal and cross-appeal and poses the question of whether the Forest Service complied with the mandates of the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321^370F, and the Wilderness Act, 16 U.S.C. §§ 1131-1136, when it issued multi-year special-use permits and granted renewals of special-use permits to commercial packstock operators in the wilderness areas. We have jurisdiction pursuant to 28 U.S.C. § 1291. I. Background Encompassing over 800,000 acres, the John Muir and Ansel Adams Wilderness Areas provide some of the most beautiful and picturesque natural wonders in the world. Stretching north to Mammoth Lakes and over 100 miles south to Lone Pine, California, the John Muir Wilderness Area includes elevations ranging from 4,000 to 14,497 feet, the summit of Mt. Whitney, the highest point in the lower 48 states. Embracing unique geologic and natural areas, the Ansel Adams Wilderness Area represents one of the most beautiful alpine regions in the Sierra Nevada range. Both wilderness areas provide users recreational opportunities such as hiking, camping, fishing, and some of the finest mountain climbing in the world. Packstock, including horses and mules, have traditionally been used to access the wilderness areas. Commercial packstock operators provide the public with the opportunity to take guided trips into the wilderness areas, transport equipment for backcountry visitors, and enable access for people who would otherwise not be able to hike in these areas. The John Muir and Ansel Adams Wilderness Areas are located within the Inyo and Sierra National Forests. Each National Forest contains some portion of each wilderness area. In 1979, the Forest Service adopted a management plan for both the John Muir and Ansel Adams Wilderness Areas. In 1988 and 1992, the Forest Service adopted a Land Resource Management Plan (“Management Plan”) for the Inyo National Forest and Sierra National Forest, respectively, and prepared an environmental impact statement (“EIS”) for each Management Plan. The Forest Service regulates the usage of the wilderness areas by the issuance of permits. Members of the general public must obtain a “wilderness permit” for an overnight visit. The Forest Service limits the number of these wilderness permits by specific trailheads. Some trailheads have daily quotas that are determined by capacity limits for wilderness zones. Commercial outfitters and guides, including those with livestock, who operate commercial services must obtain a “special-use permit.” The amount of wilderness use the commercial operators are allowed is dictated by “service day allocations.” A “service day” equals “one person being assisted by an outfitter or guide and using the wilderness for one day.” In 1997, the Forest Service issued a draft EIS proposing the replacement of existing Management Plans with new management plans for the Ansel Adams and John Muir Wilderness Areas. In February 1999, the Forest Service announced that it would issue a revised draft EIS, which it did in August 2000. On April 10, 2000, High Sierra brought suit in federal district court seeking declaratory and injunctive relief against the Forest Service for management practices in the John Muir and Ansel Adams Wilderness Areas. Specifically, High Sierra alleged that the Forest Service’s authorization of special-use permits to commercial packstock operators violated NEPA, the Wilderness Act, the National Forest Management Act, 16 U.S.C. §§ 1600-1687, and the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701-706. On May 12, 2000, a group of commercial packstock operators (hereinafter “Interve-nors” or “packers”) who operate in the Ansel Adams and John Muir Wilderness Areas sought to intervene. The district court bifurcated the proceeding into a merits phase and remedy phase. The district court denied the motion to intervene as to the merits phase of the proceeding, allowing the packers status as amici curiae, but granted the packers full participation as to the remedy phase of the proceeding. On December 19, 2000, the Forest Service filed a motion to dismiss or alternatively for summary judgment on the grounds that: (1) High Sierra’s challenges to the Forest Service’s management program for the two wilderness areas amount to an impermissible programmatic challenge barred by Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); and (2) there was no final agency action from which High Sierra could obtain relief under the APA. On December 20, 2000, High Sierra filed a motion for summary judgment. High Sierra sought declaratory relief that the Forest Service had: (1) violated the National Forest Management Act by failing to implement or meet Forest and Wilderness Standards; (2) violated the Wilderness Act by failing to determine that commercial services are necessary and proper, and by allowing services that degrade wilderness values; and (3) violated NEPA by failing to prepare environmental analyses before issuing special-use permits and other instruments that allow commercial services to be performed in the wilderness areas. On March 13, 2001, the court held a hearing on Plaintiffs’ Motion for Summary Judgment and Defendants’ Motion to Dismiss or for Summary Judgment. On April 20, 2001, the Forest Service issued a final EIS, a Record of Decision, and a 2001 Wilderness Management Plan for the two wilderness areas. In the Record of Decision, the Forest Service adopted a plan that replaced the existing wilderness plans for the Ansel Adams and the John Muir Wilderness Areas and made “non-significant amendments” to the Management Plan for the Sierra and Inyo National Forests. Subsequent to the issuance of the final EIS, the district court ordered High Sierra and the Forest Service to file supplemental briefs addressing the effect of the 2001 Wilderness Management Plan, the final EIS, and the Record of Decision on the ease. On June 5, 2001, the court issued a decision on the merits phase of the proceeding, which granted the Forest Service’s motion for summary judgment as to the claims brought under the Wilderness Act and the National Forest Management Act. The district court found that the final EIS and the Record of Decision, accompanying the 2001 Wilderness Management Plan, had analyzed the need for stock services and concluded that such services were necessary. The court found that the claims were thus mooted as to the Forest Service’s failure to make this determination. The district court also granted the Forest Service summary judgment on High Sierra’s claim that the Forest Service was violating the Wilderness Act by allowing commercial services that degraded the wilderness areas. The district court found that the Forest Service was vested with broad discretion under the Wilderness Act to determine how much commercial pack use to allow and how to deal with the impacts. However, the district court granted High Sierra’s motion for summary judgment on the NEPA claim. The district court found that the Forest Service was violating NEPA by issuing multi-year special-use permits and granting one-year renewals of special-use permits to commercial packers without first analyzing the impact by completing an EIS. On January 9, 2002, after receiving additional briefing on appropriate relief under NEPA, the district court issued an order, granting injunctive relief and ordering the Forest Service to complete a NEPA analysis of cumulative impacts by December 31, 2005, and a site-specific analysis for each permittee by December 31, 2006. In the interim, the district court ordered a reduction in the allocation of special-use permits and limited access to areas of environmental concern. Both sides appeal. High Sierra appeals the grant of summary judgment on the Wilderness Act claims. The Forest Service appeals the district court’s grant of injunctive relief for the NEPA violations. II. Standard of Review A grant of summary judgment is reviewed de novo and this court may affirm on any ground supported by the record. Sicor Ltd. v. Cetus Corp., 51 F.3d 848, 860 n. 17 (9th Cir.1995). De novo review of a district court judgment concerning the decision of an administrative agency means the court views the case from the same position as the district court. Nev. Land Action Ass’n v. United States Forest Serv., 8 F.3d 713, 716 (9th Cir.1993). The APA governs the review of agency action. Dickinson v. Zurko, 527 U.S. 150, 152, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999). Under the APA, a court may set aside an agency action if the court determines that the action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A); Pyramid Lake Paiute Tribe of Indians v. United States Dept. of Navy, 898 F.2d 1410, 1414 (9th Cir.1990) (internal quotation marks omitted). In Wilderness Society v. United States Fish & Wildlife Service, our en banc panel court addressed the question of the level of deference due to the Forest Service when it makes decisions implementing the Wilderness Act. 353 F.3d 1051, 1059-60 (9th Cir.2003) (en banc). We apply the framework articulated in that case to determine what level of deference to apply to the facts at hand. If the statute is clear and unambiguous, no deference is required and the plain meaning of Congress will be enforced. Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Wilderness Soc’y, 353 F.3d at 1061. If the statute is ambiguous, the agency’s decision is entitled to Chevron deference if it has the force of law. United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). If the decision does not have the force of law, it is reviewed with “respect” according to the factors set out in Mead and Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Wilderness Soc’y, 353 F.3d at 1067. A district court’s grant of permanent injunctive relief is reviewed for abuse of discretion or application of erroneous legal principles. See Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1176 (9th Cir.2002) (noting that underlying legal rulings are reviewed de novo). III. Discussion A. Ripeness The Supreme Court has made clear that the APA does not allow “programmatic” challenges to agency land management procedures, but instead requires that there be a specific final agency action which has an actual or immediate threatened effect. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882-94, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). In Lujan, the plaintiffs alleged that the defendants violated the Federal Land Policy Act, NEPA and APA in the administration of the “land withdrawal review program” of the Bureau of Land Management, but failed to challenge any particular agency action that caused harm. Id. at 875, 891, 110 S.Ct. 3177. The Court held that the “land withdrawal review program” was not an identifiable, much less final, agency action or series of such actions within the meaning of the APA, but rather a general label sweeping into its purview policies and practices as broad and multi-faceted as those of a “drug interdiction program” of the Drug Enforcement Administration. Id. at 890, 110 S.Ct. 3177. In the present dispute, both the Forest Service and Intervenors contend that High Sierra has made an impermissible programmatic challenge to the forest management plan and have failed to allege any specific challenges to a final agency action. We disagree. High Sierra has alleged specific discrete agency actions taken by the Forest Service that have caused harm. High Sierra did not challenge the entirety of the wilderness plan, but instead challenged certain agency actions, for example the grant of certain special-use permits, and the calculation of certain trail-head limits. In its complaint, High Sierra challenged the issuance of “special-use permits” in the Inyo and Sierra National Forests. A special-use permit is the legal instrument by which the Forest Service authorizes commercial services, 36 C.F.R. § 251.50. The issuance of a specific special-use permit is a final agency action that has an actual or immediately threatened effect sufficient to trigger standing under Lujan. See Neighbors of Cuddy Mtn. v. Alexander, 303 F.3d 1059, 1067 (9th Cir.2002) (holding that a specific sale of timber was a final agency action). Because we find that specific discrete agency actions have been alleged, we address all of the issues on the merits. B. National Environmental Policy Act NEPA is a procedural statute that does not “mandate particular results, but simply provides the necessary process to ensure that federal agencies take a hard look at the environmental consequences of their actions.” Cuddy Mtn., 303 F.3d at 1070 (internal quotation marks omitted). The Act mandates that an EIS be prepared for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). As a preliminary step, the agency may prepare an Environmental Assessment (“EA”) to determine whether the environmental impact of the proposed action is significant enough to warrant an EIS. Nat’l Parks & Conservation Ass’n v. Bab bitt, 241 F.3d 722, 730 (9th Cir.2001); see 40 C.F.R. § 1508.9. If the EA establishes that the agency’s action “may have a significant effect upon the environment” then an EIS must be prepared. Nat’l Parks, 241 F.3d at 730. The EIS must include an examination of the cumulative impacts of proposed actions. Cuddy Mtn., 303 F.3d at 1071. A cumulative impact “is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions ... [and] ... can result from individually minor but collectively significant actions taking place over a period of time.” 40 C.F.R. § 1508.7. Typically, an agency’s decision not to prepare an EIS is reviewed under the arbitrary and capricious standard; however, where an agency has decided that a project does not require an EIS without first conducting an EA, we review under the reasonableness standard. Ka Makani ‘O Kohala Ohana Inc. v. Dept. of Water Supply, 295 F.3d 955, 959 n. 3 (9th Cir.2002); Northcoast Envtl. Ctr. v. Glick-man, 136 F.3d 660, 667 (9th Cir.1998). We will defer to an agency’s decision only if it is “fully informed and well considered,” Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir.1988). Further, when an agency has taken action without observance of the procedure required by law, that action will be set aside. Idaho Sporting Congress, Inc. v. Alexander, 222 F.3d 562, 567 (9th Cir.2000). The district court found the Forest Service in violation of NEPA by issuing special-use permits and allowing renewals of special-use permits to commercial pack-stock operators without first analyzing the environmental impact. See High Sierra Hikers Ass’n v. Powell, 150 F.Supp.2d 1023, 1041-1044 (N.D.Cal.2001). The district court granted injunctive relief, and ordered the Forest Service to complete NEPA analysis of the cumulative impacts by December 31, 2005 and site-specific analysis for each permittee by December 31, 2006. In the interim, the district court ordered a reduction in the allocation of special-use permits, and limited access to areas of environmental concern. We first address the alleged violations of NEPA through the issuance of multi-year special-use permits and through the renewals of already existing special-use permits. 1. Issuance of Multi-Year Special-Use Permits The issuance of multi-year special-use permits to the commercial packers constitutes major federal action that significantly affects the environment and requires the agency to prepare a detailed EIS. 42 U.S.C. § 4332(2)(C). The Forest Service acknowledges that the protections of NEPA are implicated through the issuance of the permits, and expresses an intent to comply with NEPA with respect to future permit renewals after they complete the process of deciding whether to issue new wilderness plans. However remorseful the agency may be for failing to fulfill its statutory mandates, it is quite clear that it has breached its obligation under NEPA by failing to take the requisite “hard look” at the environmental consequences of its proposed action. Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 374, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). It is without question that NEPA applies to the issuance of the multi-year special-use permits and the district court correctly found that this oversight would likely require the completion of an EIS “in light of the cumulative impacts of the numerous permits.” High Sierra, 150 F.Supp.2d at 1043. We hold that the district court correctly found a violation of NEPA through the issuance of the multi-year special-use permits. 2. Renewal of Special-Use Permits The district court found that the one-year renewals of special-use permits were impermissibly characterized by the Forest Service as “categorical exclusions” outside the purview of NEPA. On appeal, the Intervenors revive this argument contending that the one-year renewals of the special-use permits fit within the Forest Service’s regulations as a categorical exclusion. It is true that under Forest Service policy, the agency may categorically exclude certain actions that constitute the “approval, modification, or continuation of minor short-term (one-year or less) special uses of National Forest land.... ” Alaska Ctr., 189 F.3d at 854 (9th Cir.1999) (citing Forest Service Handbook 1909.15, 30.3(1)(a)-(b)); see also High Sierra, 150 F.Supp.2d at 1043. However, the Forest Service’s own regulations do not permit the categorical exclusion of activities in wilderness areas. Forest Service Handbook 1909.15, 30.3(l)(a)-(b). A categorical exclusion cannot be used if extraordinary circumstances exist which include “con-gressionally designated areas, such as ml-demess, wilderness study areas, or National Recreational Areas.” Id. Therefore, the one-year renewals of the special-use permits were not allowable categorical exclusions and require the issuance of an EA or an EIS. The agency’s failure to prepare an EIS prior to the renewal of the special-use permits has violated NEPA by failing to take the requisite “hard look” at the environmental consequences of its proposed action. Marsh, 490 U.S. at 374, 109 S.Ct. 1851; Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir.1992). Therefore, we hold that the district court correctly found NEPA violations through both the issuance of multi-year special-use permits and renewals of special-use permits. 3. Injunctive Relief Having concluded that the Forest Service committed clear NEPA violations, we now turn to the equitable relief ordered by the district court. On appeal, the Forest Service argues that the scope of the injunctive relief granted, in particular, the requirement that the agency conduct a separate NEPA process analyzing the cumulative impacts of packstock operations no later than December 31, 2005, imposes significant and inappropriate burdens on the Forest Service and should be reversed.' The crux of its argument is that the district court’s order erred as a matter of law by improperly intruding on the agency’s scope of discretion by ordering an analysis of the cumulative impacts prior to the individual site-specific analysis. Intervenors reiterate these arguments and also contend that the district court improperly included the west side packers in the injunctive relief order. A district court has “broad latitude in fashioning equitable relief when necessary to remedy an established wrong.” Natural Res. Def. Council v. Southwest Marine, Inc., 236 F.3d 985, 999 (9th Cir.2000)(internal quotation marks omitted). The traditional bases for injunctive relief are irreparable injury and inadequacy of legal remedies. Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). In issuing an injunction, the court must balance the equities between the parties and give due regard to the public interest. Id. “Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e. irreparable.” Id. at 545, 107 S.Ct. 1396. a. Irreparable Injury In the NEPA context, irreparable injury flows from the failure to evaluate the environmental impact of a major federal action. Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir.1985). While an injunction does not automatically issue upon a finding that an agency violated NEPA, “the presence of strong NEPA claims gives rise to more liberal standards for granting an injunction.” American Motorcyclist Ass’n v. Watt, 714 F.2d 962, 965 (9th Cir.1983). If environmental injury is sufficiently likely, the balance of harms will usually favor the issuance of an injunction to protect the environment. Amoco, 480 U.S. at 545, 107 S.Ct. 1396. The record is abundantly clear that not only is environmental injury to the wilderness areas “likely,” but that injury continued unabated until the injunctive relief order was issued. The district court found that there was sufficient evidence to link commercial packstock with injury to environmentally sensitive areas and a reduction in the population of sensitive species. The record clearly supports the likelihood of continued injury absent adequate protective measures. The district court balanced the environmental and economic concerns raised by the commercial packers’ continued operation in the wilderness areas. The district court crafted a fair and balanced injunction that provided for interim relief for the environment pending compliance with NEPA and did not drastically curtail the packers’ operations. After briefing from all sides on the needed remedy, the district court adopted a combination of remedies that were proposed by the parties at the hearing and in post-hearing submissions. The district court considered the economic impact of curtailing all commercial pack operations in the interim, and chose only to reduce the current levels in order to minimize the harm. b. Public Interest In determining whether to issue an injunction, courts also consider the public interest. Amoco, 480 U.S. at 542, 107 S.Ct. 1396. Here, the alleged impact is upon two wilderness areas. Congress has recognized through passage of the Wilderness Act, 16 U.S.C. §§ 1131-1136, that there is a strong public interest in maintaining pristine wild areas unimpaired by man for future use and enjoyment. Because Congress has recognized the public interest in maintaining these wilderness areas largely unimpaired by human activity, the public interest weighs in favor of equitable relief. c. Overbreadth The Forest Service argues that the district court erred as a matter of law by improperly intruding on the agency’s scope of discretion by ordering a cumulative impacts analysis prior to the individual site-specific analyses. The agency contends that the order conflicts with the principle of limiting a reviewing court’s power to determine the agency’s task on remand, and the correct remedy was to remand the case to the agency for resolution. Where action is ongoing while the agency complies with NEPA, this court has held that injunctive relief and the ordering of an EIS is an appropriate remedy. Idaho Watersheds Project v. Hahn, 307 F.3d 815, 832-33 (9th Cir.2002); see also Blue Mtn. Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th.Cir.1998); Nat’l Parks, 241 F.3d at 739-40. In Idaho Watersheds Project, environmental groups sued the BLM for violating NEPA by issuing grazing permits to cattle ranchers. 307 F.3d at 820. This court affirmed the district court’s decision to grant injunctive relief. The lower court had found the BLM to be in violation of NEPA, and ordered the agency to undertake an expedited review of the grazing permits under NEPA. Id. at 830-31. While awaiting BLM compliance, the district court ordered interim relief allowing cattle grazing to continue but required that certain environmental safeguards be put in place to protect the land. Id. at 823. We held that the district court acted within its authority to issue the injunction and the interim relief, finding that the lower court’s actions were a fair and balanced remedy. Id. at 835. NEPA regulations are intended to ensure that environmental considerations are infused into the ongoing programs and actions of the federal government. Idaho Sporting Congress, 222 F.3d at 567. To this end, “EAs and EISs must be prepared early enough so that [they] can serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made.” Id. (quoting Save the Yaak, 840 F.2d at 718). Therefore, the requirement that the cumulative impacts be assessed by December 2005 not only comports with the requirements of NEPA, but is necessary as an important contribution to the decisionmaking process. Id. The Forest Service’s continued failure to comply with NEPA not only increases the likelihood of environmental degradation by the cumulative impacts of commercial packstock operators, it ensures it. The Forest Service also argues that the district court’s order violates the principles set forth in Kleppe v. Sierra Club, 427 U.S. 390, 406, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976), and that the court should wait until a proposal for action is made before determining the scope of an agency’s NEPA duties. The Forest Service’s reliance on Kleppe is misplaced. It is true that “[t]he determination of the extent and effect of [cumulative impact] factors, and particularly identification of the geographic area within which they may occur, is a task assigned to the special competency of the appropriate agencies.” Kleppe, 427 U.S. at 414, 96 S.Ct. 2718 (holding that the Department of the Interior did not need to complete a region-wide EIS for all potential mining projects in the Northern Great Plains area). However, the present case presents a starkly different situation from Kleppe because the specific proposal for action has been contemplated, and authorized by the Forest Service through the issuance of special-use permits and the 2001 Wilderness Plan. Blue Mtn., 161 F.3d at 1215 (ordering a cumulative impact statement addressing the proposed sales of forest for logging projects contemplated as part of the Forest Service’s forest recovery strategy). We do not find that in fashioning its relief, the district court abused its discretion by requiring the cumulative impacts to be completed by December 2005. d. West Side Packers Intervenors argue that facts specific to the west side packers show that the injunctive relief was overbroad as applied to those operators. The district court recognized that the Sierra National Forest prepared EAs before issuing permit renewals for the High Sierra Pack Station and the D & F Pack Station. Acknowledging these efforts, the district court carved out an exemption to the mandated 20% reduction in service days to the injunctive relief order, finding that “D & F Pack Station and High Sierra Pack Station are exempt from this reduction because the Forest Service has already conducted environmental analyses for those pack stations.” Intervenors argue that because the Sierra National Forest complied with NEPA in issuing the special-use permits to D & F and High Sierra Pack Stations, they should be excluded from all the limitations. We disagree. As mentioned previously, the district court has broad discretion in granting equitable relief. The injunctive relief order recognizes that the Forest Service has prepared EAs for the two pack stations. However, it also recognizes that in the overall management practices of wilderness areas, the Forest Service failed to consider the cumulative impact of the multiple pack stations operating over a substantially similar area. Further, the Forest Service acknowledges that the issuance of special-use permits constitutes a “major Federal action” which requires that the agency complete an EIS, not just an EA. 42 U.S.C. § 43S2(2)(C). We hold that the district court did not abuse its discretion in imposing the injunctive relief order on the D & F and High Sierra Pack Stations. Intervenors also argue that since the remaining west side operators, the Clyde Pack Outfitters, Lost Valley Pack Station, Minarets Pack Station, and the Yosemite Trails Pack Station account for only about half of the service days in the wilderness, the impact of these operations is not “significant” and, therefore, falls outside the requirements of NEPA. This argument misses the point. The Forest Service is required to make the necessary determination of whether an EA or EIS needs to be completed in order to comply with NEPA. The agency has admitted noncompliance with NEPA, and, further, the requirement that an EIS be prepared for every special-use permit is not an abuse of the district court’s discretion. The effects of the individual pack operators may very well be de minimis, but the agency has failed to make this evaluation and has failed to make findings regarding the cumulative impacts of these pack stations operating in the same areas. Cumulative impacts that result from individually minor but collectively significant actions are the crux of what the regulations implementing NEPA seek to avoid. See 40 C.F.R. § 1508.7; Earth Island Inst. v. United States Forest Serv., 351 F.3d 1291, 1306-07 (9th Cir.2003). The district court’s imposition of the in-junctive relief order on the west side packers was not in error. Because the district court did not abuse its discretion and did not rely on erroneous legal principles, we affirm the injunctive relief order in full. C. Wilderness Act Congress enacted the Wilderness Act “to assure that an increasing population, accompanied by expanding settlement and growing mechanization, does not occupy and modify all areas within the United States and its possessions, leaving no lands designated for preservation and protection in their natural condition....” 16 U.S.C. § 1131(a). The Act established a National Wilderness Preservation System composed of “wilderness areas” which “shall be administered for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness....” Id. The Act defines wilderness “in contrast with those areas where man and his own works dominate the landscape ... as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.” 16 U.S.C. § 1131(c). The agency charged with administering a designated wilderness area is responsible for preserving its wilderness character. 16 U.S.C. § 1133(b). Regulations provide that the wilderness areas will be administered “to meet the public purposes of recreational, scenic, scientific, educational, conservation, and historical uses; and it shall also be administered for such other purposes for which it may have been established in such a manner as to preserve and protect its wilderness character.” 36 C.F.R. § 293.2. The Forest Service, in resolving potential conflicts in resource use, must find that “wilderness values will be dominant to the extent not limited by the Wilderness Act.” 36 C.F.R. § 293.2(c). The Wilderness Act generally prohibits commercial enterprises in the wilderness areas, 16 U.S.C. § 1133(c), but authorizes commercial services within wilderness areas “to the extent necessary for activities which are proper for realizing the recreational or other wilderness purposes of the areas.” 16 U.S.C. § 1133(d)(5). The Forest Service has interpreted this provision to allow the agency to “permit temporary structures and commercial services within the National Forest Wilderness to the extent necessary for realizing the recreational or other wilderness purposes, which may include, but are not limited to, the public services generally offered by packers, outfitters, and guides.” 3Ó C.F.R. § 293.8. High Sierra argues that 16 U.S.C. § 1133(d)(5) requires as a predicate to the authorization of commercial services that the Forest Service determine the amount and type of commercial services that are necessary and proper. This argument, High Sierra contends, is bolstered by the statutory scheme of the Wilderness Act, which generally proscribes commercial enterprises, 16 U.S.C. § 1133(c), and allows only a narrow exception for the authorization of commercial services “to the extent necessary.” 16 U.S.C. § 1133(d)(5) (emphasis added). The district court granted summary judgment on this claim because it believed that the Forest Service was within its statutory discretion when it granted the permits. It is clear that the statutory scheme requires, among other things, that the Forest Service make a finding of “necessity” before authorizing commercial services in wilderness areas. The Forest Service did so in its Needs Assessment for the John Muir and Ansel Adams Wilderness Areas, in which it found that commercial packstock operations were “necessary.” The Wilderness Act is framed in general terms and does not specify any particular form or content for such an assessment; therefore the finding of “necessity” requires this court to defer to the agency’s decision under the broad terms of the Act. The shortcomings and oversights in the 2001 Wilderness Act and Needs Assessment do not require us to conclude that the agency failed to fulfill its mandate to determine the necessity of commercial services in designated wilderness areas. Under the broad terms of the Act, a finding that packstock was needed to provide access to those people who would otherwise not be able to gain access for themselves or their gear, can support a finding of necessity. However, under the terms of the Wilderness Act, a finding of necessity is a necessary, but not sufficient, ground for permitting commercial activity in a wilderness area. The finding of necessity required by the Act is a specialized one. The Forest Service may authorize commercial services only “to the extent necessary.” 16 U.S.C. § 1133(d)(5)(emphasis added). Thus, the Forest Service must show that the number of permits granted was no more than was necessary to achieve the goals of the Act. Nowhere in the Wilderness Plan of the 2001 Needs Assessment does the Forest Service articulate why the extent of such packstock services authorized by the permits is “necessary.” The limitation on the Forest Service’s discretion to authorize commercial services only to “the extent necessary” flows directly out of the agency’s obligation under the Wilderness Act to protect and- preserve wilderness areas. When administering a wilderness area, the Forest Service must balance many competing interests. The administering agency is charged with maintaining the wilderness character of the land, providing opportunities for wilderness recreation, managing fire and insect risk, and even facilitating mineral extraction activities. 16 U.S.C. § 1133. When the Forest Service completed the Needs Assessment it examined independently three topics related to the need for commercial services: the types of activities for which commercial services are needed, the extent to which current permits are being used, and the amount of use the land can tolerate. All of these are relevant factors to consider when determining how much, if any, commercial activity is appropriate in a wilderness area. However, at some point in the analysis, the factors must be considered in relation to one another. If complying with the Wilderness Act on one factor will impede progress toward goals on another factor, the administering agency must determine the most important value and make its decision to protect that value. That is what the Forest Service failed to do in this case. At best, when the Forest Service simply continued preexisting permit levels, it failed to balance the impact that that level of commercial activity was having on the wilderness character of the land. At worst, the Forest Service elevated recreational activity over the long-term preservation of the wilderness character of the land. The question now confronting us is what level of deference is due to the Forest Service’s determination that preserving the wilderness character of the land is not the ultimate interest of the Wilderness Act. If the Forest Service is not due deference for its decision to grant the permits, then summary judgment was inappropriate on this issue. Although we believe that Congress intended to enshrine the long-term preservation of wilderness areas as the ultimate goal of the Act, the diverse, and sometimes conflicting list of responsibilities imposed on administering agencies renders Congress’s intent arguably ambiguous. Where the statute is ambiguous, the agency deserves Chevron deference only if it is acting with the force of law. Wilderness Soc’y, 353 F.3d at 1067. The Forest Service was not acting with the force of law in this case because it was granting permits, not acting in a way that would have precedential value for subsequent parties. Mead, 533 U.S. at 229-30, 121 S.Ct. 2164; Wilderness Soc’y, 353 F.3d at 1067. Therefore, the agency’s determination is due only “ ‘respect’ based on the persuasiveness of the decision.” Wilderness Soc’y, 353 F.3d at 1067. When applying this level of review, we look to the process the agency used to arrive at its decision. Mead, 533 U.S. at 228, 235,121 S.Ct. 2164; Skidmore, 323 U.S. at 140, 65 S.Ct. 161. Among the factors we are to consider are the “interpretation’s thoroughness, rational validity, and consistency with prior and subsequent pronouncements .... the logic[ ] and expertness of an agency decision, the care used in reaching the decision, as well as the formality of the process used.” Wilderness Soc’y, 353 F.3d at 1068 (internal citations and quotation marks omitted). The Forest Service’s determination does not meet this standard. The Wilderness Act twice states its overarching purpose. In Section 1131(a) the Act states, “and [wilderness areas] shall be administered for the use and enjoyment of the American people in such a manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas, the preservation of their wilderness character.” 16 U.S.C. § 1131(a) (emphasis added). Although the Act stresses the importance of wilderness areas as places for the public to enjoy, it simultaneously restricts their use in any way that would impair their future use as wilderness. This responsibility is reiterated in Section 1133(b), in which the administering agency is charged with preserving the wilderness character of the wilderness area. The Forest Service’s decision to grant permits at their pre-existing levels in the face of documented damage resulting from overuse does not have rational validity. In its Needs Assessment, the Forest Service listed the trailheads showing damage from overuse, but it did not take the next step to actually protect those areas by lowering the allowed usage. Given the Wilderness Act’s repeated emphasis of the administering agency’s responsibility to preserve and protect wilderness areas, this decision cannot be reconciled with the Forest Service’s statutory responsibility. Moreover, because the Forest Service granted the permits without going through the required NEPA analysis, the decision lacked the formality it was legally required to have. Because the Forest Service made its decision to grant the permits without the required public analysis and without consideration of the impact its decision would have on its ultimate responsibilities under the Wilderness Act, we hold that the Forest Service was not within its statutory discretion when it granted the permits and that the district court was incorrect to grant summary judgment on the Wilderness Act claims. IV. Conclusion We hold that the district court correctly found that the Forest Service was in violation of NEPA by failing to assess the individual and cumulative impacts of the issuance of special-use permits to commercial packstock operators in the John Muir and Ansel Adams Wilderness Areas. The district court was incorrect, however, in granting a summary judgment holding that the requirements of the Wilderness Act had not been violated. We hold that the Wilderness Act imposes substantive requirements on an administering agency and that there are triable issues of fact regarding whether the Forest Service damaged the wilderness areas. The equitable relief granted by the injunction in practicality addresses most of the substantive violations of the Wilderness Act pending the Forest Service’s compliance with NEPA, as ordered by the district court. However, the injunction does not address remediation of any degradation that may have been caused by packstock services before the 2001 Needs Assessment. The requirements of NEPA are procedural, to assure that the agency takes a hard look at the important environmental factors, whereas the Wilderness Act sets forth substantive requirements to protect the wilderness. Until such time as the Forest Service complies with the court’s order concerning the NEPA procedural requirements, and thereafter reaches a decision concerning the commercial activity permissible in the Wilderness Areas, the Court’s interim injunction largely addresses the requirements of the Wilderness Act. The ultimate decision of the Forest Service will remain subject to the substantive requirements of the Wilderness Act. We affirm the decision of the district court in granting the injunction, but reverse the summary judgment with respect to the Forest Service’s compliance with the Wilderness Act and remand to the district court for a determination of appropriate relief under the Wilderness Act for remediation of any degradation that has already occurred. AFFIRMED in part and REVERSED in part and REMANDED. . The named defendants are the Forest Service itself, the Chief of the Forest Service, the Regional Forester, and two Forest Supervisors. . "Long ago I made these Sierra trips, carrying only a sackful of bread with a little tea and sugar and thus was independent and free, but now that trails or carriage roads lead out of the (Yosemite) Valley in almost every direction it is easy to take a pack animal, so that the luxury of a blanket and a supply of food can easily be had.” John Muir, The Yosemite (1912). . The Forest Service argued before the district court that the one-year renewal of the special-use permits fit within the categorical exclusion of "minor short-term (one-year or less) special uses” of National Forest land. Alaska Ctr. for the Env’t v. United States Forest Serv., 189 F.3d 851, 854 (9th Cir.1999). However, the agency has abandoned this argument on appeal. . A Cascade Valley Ranger describes a meadow below the third crossing in his area as "the most overused and abused place in my area" and attributes the damage to pack groups. ("Closing meadows without limiting the number of stock is just moving the problem up to 3rd crossing, where we have heavy grazing, dead trees and near-Range wars between pack outfits.”). A District Ranger reports that a meadow damage assessment found that "85% of a one-acre meadow section was devoid of vegetation due to intensive use by pack stock.” Heavy accumulations of manure and exposed tree roots were similarly noted at a campsite. Significant vegetation loss and soil compaction were noted in a packstock camp by a forest soil scientist. . The mountain yellow-legged frog, previously abundant in the Inyo and Sierra National Forests, has declined in number in the past five decades. Evidence in the record attributes the decline of the yellow-legged frog to various factors, including livestock activities. In addition, the Yosemite Toad has suffered in the Inyo and Sierra National Forests. Livestock activities are cited as a factor in the decline of the Yosemite Toad. While other factors also contribute to the decline of these species, the evidence shows that stock use is a contributing factor. .The district court’s injunctive relief order stated in full that: 1. The Forest Service shall complete the NEPA process analyzing the cumulative impacts of pack stock operations no later than December 31, 2005. In conducting the cumulative impacts analysis, the Forest Service shall consider limits on numbers of stock animals used in conjunction with commercial operators; limits on group size (both number of people and number of stock both on and off trail); trail suitability for various use types; and designation of campsites for use by commercial pack stations. No later than December 31, 2006, the Forest Service must complete site-specific environmental analyses under NEPA for each permittee. 2. Pending completion of the cumulative and site-specific analyses set forth in paragraph 1, above, and issuance, or denial, of special use permits to pack stations pursuant thereto, the following restrictions shall apply: A. The service day allocations for pack-supported overnight use set forth on pages 11 and 13 of Appendix I of the final EIS shall be reduced by twenty percent (20%). To the extent that the service day allocations differentiate between day use and overnight use, this reduction applies to overnight use only. The Forest Service and Intervenors shall use best efforts to reduce use of service days for overnight trips to the areas designated "red” and "yellow/red” in Appendix D of the final EIS proportionately, i.e., by 20%. In addition, the maximum party size for overnight trips supported by commercial pack stock shall be 12 people and 20 stock. D & F Pack Station and High Sierra Pack Station are exempt from this reduction because the Forest Service has already conducted environmental anal-yses for those pack stations. B. Although the Record of Decision provides for 3,000 extra service days, the Forest Service shall not authorize those additional days until the NEPA process is completed. See Record of Decision, April 2001, at 12(discussion of additional service days). C. The Forest Service shall issue all wilderness permits for commercial uses of the Ansel Adams and John Muir Wilderness Areas. Facsimile copies, or electronic mail copies that can be printed out, of the completed Forest Service-issued permits may be provided by pack station operators to their clients. D. Implementation of the trailhead quotas will be phased-in over a two-year period. For the first year, beginning in 2002, the trailhead quotas will not exceed 130% of the quotas listed on Table 1.5 in the 2001 Wilderness Management Plan at page 20. In 2003, the trailhead quotas will not exceed 115% of the quotas listed in the 2001 Wilderness Management Plan. In 2004, the trailhead quotas will not exceed 100% of the quotas in the 2001 Wilderness Management Plan. As stated in the Record of Decision, the phase-in period does not apply to trailhead quotas that did not change. Record of Decision, April 2001, at 10. E. The Forest Orders listed in the Record of Decision will be implemented by June 1, 2002. F. The Forest Service shall use the interim criteria set forth in Exhibit 2 to Federal Defendants’ October 3, 2001 brief to approve or disapprove non-system trail use by commercial operators until the individual pack station NEPA analyses are completed. G. In the period before the Forest Service completes cumulative impacts and site-specific environmental impacts analyses of all commercial packstock uses of the wilderness areas and issues special use permits, commercial packstock operations cannot occur except under the terms and conditions of this Order, and under any Forest Service plans, permits or directives that are consistent with this Order. H. Plaintiffs and Intervenors shall reserve their administrative appeal rights as to the new wilderness plans. . West side packers include the High Sierra Pack Station, D & F Pack Station, Clyde Pack Outfitters, Lost Valley Pack Station, and Yosemite Trails Pack Station. . We note that D & F and High Sierra Pack Stations are not precluded from seeking a modification of the injunction from the district court if they believe they have good cause to do so. See, e.g., A & M Records, Inc. v. Napster, Inc., 284 F.3d 1091, 1099 (9th Cir.2002).

Wilderness Watch v. Mainella

BARKETT, Circuit Judge: Wilderness Watch appeals the grant of summary judgment to the National Park Service on its complaint seeking to enjoin the Park Service’s practice of using motor vehicles to transport visitors across the designated wilderness area on Cumberland Island, Georgia. Wilderness Watch asserts that this practice violates the Wilderness Act, 16 U.S.C. §§ 1131-36, and also that the Park Service made the decision to transport tourists without conducting the investigation and analysis of potential environmental impact required by the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4331-35. Finally, Wilderness Watch claims that the Park Service established an advisory committee without the public notice and participation required by the Federal Advisory Committee Act, 5 U.S.CApp. 2, rendering the agreement signed following those meetings invalid and unenforceable. We review de novo a grant of summary judgment, applying the same legal standards used by the district court. Shotz v. City of Plantation, 344 F.3d 1161, 1165 (11th Cir.2003). The Administrative Procedure Act, which governs review of agency action, permits courts to set aside agency action when it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). I. The Wilderness Act A. Mindful of our “increasing population, accompanied by expanding settlement and growing mechanization,” Congress passed the 1964 Wilderness Act in order to preserve and protect certain lands “in their natural condition” and thus “secure for present and future generations the benefits of wilderness.” 11 U.S.C. § 1131(a). The Act recognized the value of preserving “an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.” Id. at § 1131(c). Congress therefore directed that designated wilderness areas “shall be administered for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas, the preservation of their wilderness character, and for the gathering and dissemination of information regarding their use and enjoyment as wilderness.” Id. at 1131(a). Cumberland Island, which features some of the last remaining undeveloped land on the barrier islands along the Atlantic coast of the United States, was declared by Congress to be a National Seashore in 1972. Ten years later, Congress designated as wilderness or potential wilderness some 19,000 acres, including most of the northern three-fifths of the island. See P.L. 97-250, 96 Stat. 709 (Sept. 8, 1982). Under the aegis of the Secretary of the Interior, the Park Service thus became responsible for administering the wilderness area “in accordance with the applicable provisions of the Wilderness Act.” Id. at § 2(c). Today, visitors to Cumberland Island must leave their vehicles on the mainland and travel to the island by boat. In addition to wilderness area, Park Service land includes several buildings and facilities on the southern end of the island as well as two historical areas on the northern and western coasts: Plum Orchard, just outside the wilderness boundary, and the Settlement, located in potential wilderness area. Historically, these two locations have been reached via the “Main Road,” a one-lane dirt road that has also been designated as part of the wilderness and potential wilderness areas. Once federal land has been designated as wilderness, the Wilderness Act places severe restrictions on commercial activities, roads, motorized vehicles, motorized transport, and structures within the area, subject to very narrow exceptions and existing private rights. Specifically, the relevant section provides: Except as specifically provided for in this chapter, and subject to existing private rights, there shall be no commercial enterprise and no permanent road within any wilderness area designated by this chapter and, except as necessary to meet minimum requirements for the administration of the area for the purpose of this chapter (including measures required in emergencies involving the health and safety of persons within the area), there shall be no temporary road, no use of motor vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of mechanical transport, and no structure or installation within any such area.' 16 U.S.C. § 1133(c). Thus, aside from exceptions not relevant here, the statute permits the use of motor vehicles and transport only “as necessary to meet minimum requirements for the administration of the area for the purpose of this chapter.” Id. Following the wilderness designation, the Park Service continued to use the existing one-lane dirt road to access the historical areas. Motorized transportation on Cumberland Island became a controversial issue in the 1990s, as the federal government sought to obtain remaining private tracts on the island' and various groups called for greater public access to and' support of the historical sites. An informal group of environmental organizations, historical societies, and local residents met several times in an attempt to discuss and ultimately to influence Park Service policy. Jack Kingston, the representative to Congress from the district including Cumberland, introduced legislation that would have removed the wilderness designation from the roads leading to the historical sites. This bill died in committee in 1998, but later that year the Park Service convened the first of two meetings with many of the same interested parties in an attempt to negotiate a solution to the conflict over its policies. In February 1999 the Park Service agreed to provide regular public access to Plum Orchard and the Settlement via Park Service motor vehicles until boat service could be established. The Park Service claimed that it needed motorized access to the historical areas in order to “meet[ ] its obligations to restore, maintain, preserve and curate the historic resources ... and permit visitor access and interpretation.” R. at 4^16-559, 562. The Service also claimed that permitting tourists to “piggyback” along on Park Service personnel trips to these locations would yield “no net increase in impact,” — that is, the number of trips and overall impact on the area would be no greater than if the Park Service were simply meeting its statutory obligations. Id. For the first two months, the Park Service used vehicles that held four passengers, but the agency soon acquired a fifteen-person van in order to accommodate larger numbers of visitors. The Park Service offered trips to Plum Orchard three times per week and to the Settlement once per month. Although the Park Service had not previously visited the sites on a regular schedule, the agency decided to establish a regular schedule in order to accommodate the transportation of visitors. Wilderness Watch objects to this arrangement, arguing that the Wilderness Act restricts motorized vehicle use within wilderness areas to the minimum necessary for an agency to meet its administrative needs for the purpose of the Wilderness Act and not for any other purpose. Thus, Wilderness Watch argues, the statute prohibits the Park Service from offering these “piggybacked” tours to visitors. The Park Service, on the other hand, reads the statute to allow visitors to ride along with its employees as they travel to Plum Orchard and the Settlement to perform what they claim is administrative and maintenance work on those properties. The Service claims that the Act allows land designated as wilderness to be devoted to multiple purposes, citing as authority 16 U.S.C. § 1133(b), which provides that “wilderness areas shall be devoted to the public purposes of recreational, scenic, scientific, educational, conservation, and historical use.” Thus, the Park Service argues, because it has a separate duty to preserve the historical structures at the Settlement, the “preservation of historic structures in wilderness (or, as here, potential wilderness) is in fact administration to further the purposes of the Wilderness Act.” Appellees’ Br. at 32. This dispute thus requires us to interpret the limitations imposed on motor vehicle use under the Wilderness Act, in particular the requirement that motor vehicle use be restricted to the level "necessary to meet minimum requirements for the administration of the area," 16 U.S.C. § 1133(c). We must also determine the effect of the Act upon the Park Service's obligations to maintain the historical structures on Cumberland Island and whether the Act can accommodate the Park Service's decision to transport tourists for the purpose of visiting those structures. We analyze the Park Service's interpretation of the statutory phrase "except as necessary to meet minimum requirements for the administration of the area" under the two-step analysis described in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and clarified ii~ United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). Under Chevron, we first ask whether congressional intent is clear, and if so, "that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." 467 U.S. at 842-43, 104 S.Ct. 2778. We examine congressional intent through the plain language of the statute, understanding that "the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000). If we find the statute silent or ambiguous, we defer to the agency interpretation "when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority." Mead Corp., 533 U.S. at 226-27, 121 S.Ct. 2164. B. As an initial matter, we cannot agree with the Park Service that the pres-ervat~on of historical structures furthers the goals of the Wilderness Act. The Park Service's responsibilities for the historic preservation of Plum Orchard and the Settlement derive, not from the Wilderness Act, but rather from the National Historic Preservation Act (NHPA), 16 U.S.C. § 461, et seq. The NHPA requires agencies to "assume responsibility for the preservation of historic properties" they control. Id. at § 470h-2(a)(1). Plum Orchard and the historic district containing the Settlement have both been listed in the National Register of Historic Places, though the congressional reports and early Park Service reports only mention Plum Orchard (which itself lies outside the designated wilderness area). The agency'~ obligations under the Wilderness Act are quite different. The Wilderness Act defines wilderness as “undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation.” 16 U.S.C. § 1131(c). A wilderness area should “generally appear[] to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable.” Id. Another section of the Act explicitly states that, except as necessary for minimal administrative needs that require occasional vehicle use, “there shall be ... no structure or installation within any such [wilderness] area.” 16 U.S.C. § 1133(c). As the Park Service notes, Section 1133(b) mentions “historical use” along with “recreational, scenic, scientific, educational, [and] conservation” uses. However, this list tracks the definition of wilderness areas in § 1131(c), which describes “a primitive and unconfined type of recreation” and “ecological, geological, or other features of scientific, educational, scenic, or historical value.” 16 U.S.C. § 1131(c). Given the consistent evocation of “untrammeled” and “natural” areas, the previous pairing of “historical” with “ecological” and “geological” features, and the explicit prohibition on structures, the only reasonable reading of “historical use” in the Wilderness Act refers to natural, rather than man-made, features. Of course, Congress may separately provide for the preservation of an existing historical structure within a wilderness area, as it has done through the NHPA. Congress wrote the wilderness rules and may create exceptions as it sees fit. Absent these explicit statutory instructions, however, the need to preserve historical structures may not be inferred from the Wilderness Act nor grafted onto its general purpose. Furthermore, any obligation the agency has under the NHPA to preserve these historical structures must be carried out so as to preserve the “wilderness character” of the area. See 16 U.S.C. § 1133(b) (“[E]ach agency administering any area designated as wilderness shall be responsible for preserving the wilderness character of the area and shall so administer such area for such other purposes for which it may have been established as also to preserve its wilderness character.”) This appeal turns not on the preservation of historical structures but on the decision to provide motorized public access to them across designated wilderness areas. The Wilderness Act bars the use of motor vehicles in these areas “except as necessary to meet minimum requirements for the administration of the area for the purpose of this chapter [the Wilderness Act].” 16 U.S.C. § 1133(c). The Park Service’s decision to “administer” the Settlement using a fifteen-passenger van filled with tourists simply cannot be construed as “necessary” to meet the “minimum requirements” for administering the area “for the purpose of [the Wilderness Act].” 16 U.S.C. § 1133(c). The plain language of the statute contradicts the Park Service position. When interpreting the language of a statute, “we generally give the words used their ordinary meaning.” Griffith v. United States (In re Griffith), 206 F.3d 1389, 1393 (11th Cir.2000) (en banc) (citations and internal quotation marks omitted). If these words are unambiguous, our inquiry is complete, for “we must presume that Congress said what it meant and meant what it said.” CBS, Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1222 (11th Cir.2001) (citation omitted). In no ordinary sense of the word can the transportation of fifteen people through wilderness area be “necessary” to administer the area for the purpose of the Wilderness Act. The Park Service argues that these trips affect the wilderness no more than would a standard Park Service vehicle with no additional passengers. Thus, the agency argues that the “use of motor vehicles” remains the same as what would be minimally necessary for administration. There are several problems with this interpretation. Most obviously, it still runs counter to the plain meaning of the provision. Under an ordinary, common-sense reading, people “use” motor vehicles when they ride in the Park Service van, thereby increasing the “use of motor vehicles” beyond the minimum necessary for administration of the Wilderness Act. The Park Service wishes to define the term based on the number of vehicles used rather than on the number of people using them, but even so, the acquisition and use of a large passenger van for transporting tourists cannot reasonably be squeezed into the phrase “necessary to meet minimum requirements” of administration. The language in this subsection is quite categorical, providing for “no motor vehicle use” except “as necessary” and labels this a “prohibition." 16 U.S.C. § 1133(c) (emphasis added). Moreover, the same subsection provides that there shall be “no other form of mechanical transport” beyond what is necessary for administration of the Wilderness Act. Id. A passenger van certainly provides more “transport” than would a Park Service vehicle without extra passengers. In addition, the overall purpose and structure of the statute argue against the agency interpretation. The prohibition on motor vehicle “use” in the Wilderness Act stems from more than just its potential for physical impact on the environment. The Act seeks to preserve wilderness areas “in their natural condition” for their “use and enjoyment as tvildemess.” 16 U.S.C. § 1131(a) (emphasis added). The Act promotes the benefits of wilderness “for the American people,” especially the “opportunities for a primitive and unconfined type of recreation.” Id. at § 1131(c). Thus, the statute seeks to provide the opportunity for a primitive wilderness experience as much as to protect the wilderness lands themselves from physical harm. See also National Park Service, Reference Manual 41 at 14 (“In addition to managing these areas for the preservation of the physical wilderness resources, planning for these areas must ensure that the wilderness character is likewise preserved.”). Use of a passenger van changes the wilderness experience, not only for the actual passengers, but also for any other persons they happen to pass (more so than would be the case upon meeting a lone park ranger in a jeep). Of course, there is nothing wrong with appreciating natural beauty from inside a passenger van, and many other categories of public land administered by the federal government appropriately offer this opportunity. It simply is not the type of “use and enjoyment” promoted by the Wilderness Act. Other documents in the record highlight the potential conflict between wilderness values and the transportation of passengers. The agency’s Minimum Requirements Determination (MRD) for the Plum Orchard trips recognized “concerns over the van affecting the quality of the visitor experience for those seeking a wilderness experience.” R. at 4-46-583. The House report accompanying the bill establishing the Cumberland wilderness area urged the Park Service to provide exclusive access to Plum Orchard by water “in the interests of minimizing unnecessary intrusion on wilderness values.” H. Rep. No. 97-383 at 5. The agency itself previously stressed the need to limit mechanized transport to administrative purposes that promote wilderness values. See, e.g., National Park Service, Reference Manual 41 at 16-17 (“Administrative use of motorized equipment or mechanical transport will be authorized only if determined by the superintendent to be the minimum requirement needed by management to achieve the purposes of the area as wilderness, including the preservation of wilderness character and values, or in emergency situations (emphasis added). The language of the specific provision at issue and the overall purpose and structure of the Wilderness Act demonstrate that Congress has unambiguously prohibited the Park Service from offering motorized transportation to park visitors through the wilderness area, II. National Environmental Policy Act Wilderness Watch also argues that, regardless of whether the Wilderness Act permitted these, tours, the agency should have evaluated the environmental impact of its proposal through the written review procedures required by NEPA, 42 TJ.S.C. §§ 4331-35. NEPA essentially forces federal agencies to document the potential environmental impacts of significant decisions before they are made, thereby ensuring that environmental issues are considered by the agency and that important information is made available to the larger audience that may help to make the decision or will be affected by it. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA imposes procedural requirements rather than substantive results, and so long as an agency has taken a “hard look” at the environmental consequences, a reviewing court may not impose its preferred outcome on the agency. Fund for Animals, Inc. v. Rice, 85 F.3d 535, 546 (11th Cir.1996). Both parties agree that the- Park Service did not document any formal NEPA review before its decision. The Park Service argues that its action qualified for a categorical exclusion from NEPA review, thus relieving the agency from the need to conduct any formal, written review. The Park Service directs our attention to regulations issued by the Council on Environmental Quality permitting each agency to identify categories of actions that “do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations ... and for which, therefore, neither an environmental assessment nor environmental impact statement is required.” 40 C.F.R. § 1508.4. In its list of such categorical exclusions, the Department of the Interior has identified some eleven routine activities that do not require NEPA analysis. Dep’t of the Interior, Department Manual, part 516, ch. 2, app. 1, 49 Fed. Reg. 21437 (May 21, 1984). In this case, the Park Service relies on the exclusion for “[rjoutine and continuing government business, including such things as supervision, administration, operations, maintenance and replacement activities having limited context and intensity; e.g. limited size and magnitude or short-term effects.” Id. at 21439 ¶ 1.8. Wilderness Watch argues that the Park Service cannot invoke a categorical exclusion because there is no evidence that the agency determined that the exclusion applied at the time it agreed to transport visitors. In effect, Wilderness Watch accuses the agency of failing to consider the environmental impacts of its decision and then resorting to the exclusion as a post hoc rationalization. If true, “[t]his would frustrate the fundamental purpose of NEPA, which is to ensure that federal agencies take a ‘hard look’ at the environmental consequences of their actions.” California v. Norton, 311 F.3d 1162, 1175 (9th Cir.2002) (discussing a similar allegation). After reviewing the record, we cannot find any indication that the Park Service considered the application of the categorical exclusion prior to its decision, nor does the agency direct our attention to any such evidence. Rather, the Park Service argues that forcing an agency to formally document reliance on a categorical exclusion would defeat the purpose of the exclusion: to streamline procedures and reduce paperwork and delay. Appellee Br. at 44-45 (citing 40 C.F.R. §§ 1400.4(p) & 1500.5(k)). We disagree. Documentation of reliance on a categorical exclusion need not be detailed or lengthy. It need only be long enough to indicate to a reviewing court that the agency indeed considered whether or not a categorical exclusion applied and concluded that it did. As the Ninth Circuit recently pointed out, it is difficult for a reviewing court to determine if the application of an exclusion is arbitrary and capricious where there is no contemporaneous documentation to show that the agency considered the environmental consequences of its action and decided to apply a categorical exclusion to the facts of a particular decision. Post hoc invocation of a categorical exclusion does not provide assurance that the agency actually considered the environmental effects of its action before the decision was made. California, 311 F.3d at 1176. In most instances, a short statement that a categorical exclusion has been invoked will suffice to assure a reviewing court that environmental effects have been considered. Moreover, in this case, we do not believe that the agency action falls within the categorical exclusion for “routine and continuing government business.” Obtaining a large van to accommodate fifteen tourists hardly appears to be a “routine and continuing” form of administration and maintenance. Even assuming this exclusion applied, Interior Department regulations create exceptions to every categorical exclusion, several of which may be relevant here. Department Manual, 49 Fed.Reg. at 21439 App. 2. The regulations state that “environmental documents must be prepared for actions which may ... (2.2) Have adverse effects on ... wilderness areas ... (2.5) Establish a precedent for future action ... (2.10) Threaten to violate a federal ... law or requirement imposed for the protection of the environment.” Id. at ¶¶ 2.2, 2.5, & 2.10 (emphasis added). Even crediting the agency’s position that the van trips would have “no net increase in impact” on the wilderness area, mechanized passenger service through a wilderness area creates a potential “precedent for future action” and, as described above, the policy “threaten[s] to violate” the Wilderness Act. At a minimum, the agency should have recognized that these exceptions “may” apply. Courts of Appeals have, on occasion, reversed agency invocations of categorical exclusions that failed to consider the relevant Interior Department exceptions. See, e.g., California, 311 F.3d at 1176 (discussing the exceptions for adverse effects on threatened species, ecologically .significant areas, and highly controversial environmental effects); Fund for Animals v. Babbitt, 89 F.3d 128, 133 (2d Cir.1996) (reversing a finding of categorical exclusion because the program did not fit comfortably into any of the Interior Department categories and because the scheduled moose hunt would trigger the exception for activities that have “highly controversial environmental effects.”). The district court agreed that the agency had not made a proper determination that a categorical exclusion applied before making its decision. However, the court found that remanding for further NEPA review would be pointless given the agency’s later statement in the Settlement MRD that there were no adverse environmental impacts. In our view, the inclusion of two conclusory sentences in the MRD several months after the tours had started does not represent the sort of “technical violation” of NEPA that could excuse noncompliance. NEPA imposes procedural requirements before decisions are made in order to ensure that those decisions take environmental consequences into account. Permitting an agency to avoid a NEPA violation through a subsequent, conclusory statement that it would not have reáched a different result even with the proper analysis would significantly undermine the statutory scheme. Other circuits have only been willing to declare a NEPA violation harmless when the relevant decision makers actually engaged in significant environmental analysis prior to the decision but failed to comply with the exact procedures mandated. See, e.g., Save Our Heritage, Inc. v. FAA, 269 F.3d 49, 59-62 (1st Cir.2001); Sierra Club v. Slater, 120 F.3d 623, 637 (6th Cir.1997); Laguna Greenbelt, Inc. v. United States Dep’t of Transp., 42 F.3d 517, 527 (9th Cir.1994); Illinois Commerce Com’n v. ICC, 848 F.2d 1246, 1257 (D.C.Cir.1988). That is not the case here. In the absence of evidence that an agency seriously considered environmental impacts prior to making its decision, violations of NEPA cannot be considered harmless. III. Conclusion We recognize the difficult position of the Park Service in this’'case. Faced with competing demands from different constituencies in both Congress and the general public, the agency attempted to find a compromise that would satisfy all interested parties and potentially stave off legislative changes to the status of the Cumberland Island wilderness area. Although this goal is laudable, the statute limits motor vehicle use and transport to what is “necessary to meet minimum requirements for the administration of the area.” The compromise on public transportation reached in this case cannot be squared with the language of the Wilderness Act. REVERSED. . Wilderness Watch also challenged the Park Service’s decision to permit Grayfield Inn, a private hotel operating in the southern part of the island, to conduct daily motorized tours for its guests through wilderness areas. The district court remanded these claims to the agency for a determination of the scope of Grayfield's private rights that pre-dated the designation of the wilderness areas. These claims are not at issue in this appeal. . Potential wilderness areas contain certain temporary conditions that do not conform to the Wilderness Act. They are to receive full wilderness designation when the Secretary of the Interior determines that "uses prohibited by the Wilderness Act have ceased.” P.L. 97-250 § 2(a). Park Service policy "is to treat potential wilderness in exactly the same manner as wilderness.” R. at 2-17 Ex. 1 (declaration of Cumberland Island Superintendent Arthur Frederick). The Park Service wilderness manual states that: Management decisions made pertaining to lands qualifying as wilderness will be made in expectation of eventual wilderness designation. This policy also applies to potential wilderness, requiring it to be managed as wilderness to the extent that existing nonconforming uses allow. The National Park Service will seek to remove the temporary non-conforming conditions that preclude wilderness designation. All management decisions affecting wilderness will further apply the concepts of "minimum requirements” for the administration of the area regardless of wilderness category. National Park Service, Reference Manual 41: Wilderness Preservation and Management at 14 (1999) . Plum Orchard, a mansion complex commissioned by Thomas Carnegie in the late nineteenth century, lies some two-and-one-half miles from the wilderness boundary on the western coast. The Settlement, the remnants of an area occupied by a group of freed slaves after the Civil War, lies another six miles north of Plum Orchard. . Neither “existing private rights” nor the exceptions "specifically provided for in this chapter” are relevant to this appeal. See 16 U.S.C. § 1133(d) (describing the special exceptions for aircraft, motorboats, fire, insects, disease, mining and mineral activities, water resources, certain specific commercial services, and state jurisdiction over wildlife). . The record does not contain any contemporaneous logs or records that document the frequency of Park Service use prior to the transportation of tourists. . In September 2002, four months after this litigation commenced, the Park Service established boat service to Plum Orchard and discontinued land transportation of tourists to that site. See R. at 6-63 (Cumberland Island National Seashore Policy Memorandum 2003-01) ("Henceforth, all tourist transport to Plum Orchard Mansion and historic grounds offered by CUIS shall be via boat. No motorized tours to the Mansion by Seashore personnel are authorized.”). The district court concluded that this rendered moot the claims relating solely to Plum Orchard. We note that the party asserting mootness bears "the heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again.” Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222, 120 S.Ct. 722, 145 L.Ed.2d 650 (2000) (internal punctuation marks omitted). We have also stated previously that the "mere voluntary cessation of a challenged practice” does not render a claim moot, because the party could simply resume the practice following the conclusion of litigation. Jews for Jesus, Inc. v. Hillsborough County Aviation Auth., 162 F.3d 627, 629 (11th Cir.1998). However, the record indicates that the Park Service always intended to shift from land service to boat service so long as the latter proved feasible. See R. at 4-46-585 (1999 Plum Orchard Minimum Requirements Determination); R. at 4-46-23 (1984 General Management Plan for Cumberland Island). In light of the longstanding plans to switch to boat service, the unequivocal language of the policy memorandum, and the Park Service's declaration that any subsequent change in this policy would require "thorough legal and policy review, including an analysis of the environmental impacts to the extent required by [NEPA],” R. at 6-63-1, we agree that there is no "reasonable expectation that the challenged practice will resume” once the litigation ends. Jews for Jesus, 162 F.3d at 629 (internal quotation marks omitted). Of course, if the Park Service does reconsider its policy with respect to Plum Orchard in the future, that decision will be governed by the Wilderness Act and by NEPA, as construed in this opinion. . Because we hold that the Wilderness Act speaks directly to the question at issue, we need not resolve the question of the precise level of deference due the agency action under the second prong of Chevron. We note, however, that when, as here, the agency interpretation does not constitute the exercise of its formal rule-making authority, we accord the agency consideration based upon the factors cited in Skidmore v. Swift & Co., 323 U.s. 134, 65 5.Ct. 161, 89 L.Ed. 124 (1944): "the thoroughness evident in [the agency's] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and Wall those factors which give it power to persuade, if lacking power to control." Id. at 140, 65 S.Ct. 161. See also Mead Corp., 533 U.S. at 228, 121 S.Ct. 2164 (listing these factors and citing Skidmore). . See http :/Iwww.nationalregisterofhistoric-places.com/GA/Camdenldistricts.html (ac-cessçd June 25, 2004). . Common sense is the most fundamental guide to statutory construction. Tug Allie-B, Inc. v. United States, 273 F.3d 936, 948 (11th Cir.2001). . As the District of Colombia district court remarked upon reaching a similar conclusion: The Court does not intend to establish a requirement that an agency prepare a full-blown statement of reasons for invoking a categorical exclusion ["CE”]. Such a requirement would detract from the legitimate governmental interest in avoiding unnecessary paperwork for actions that legitimately fall under a categorical exclusion and do not require an [Environmental Assessment] or [Environmental Impact Statement], The Court simply holds that a post hoc assertion of a CE during litigation, unsupported by any evidence in the administrative record or elsewhere that such a determination was made at the appropriate time, cannot justify a failure to prepare either an EA or an EIS. Edmonds Institute v. Babbitt, 42 F.Supp.2d 1, 18 n. 11 (D.D.C.1999). . We note that, unlike the MRD for the Plum Orchard trips, the MRD for the Settlement trips does not mention "concerns over the van affecting the quality of the visitor experience for those seeking a wilderness experience.” R. at 4-46-583. The record does not demonstrate that the Park Service ever considered this particular impact of the Settlement trips. . Because we hold that the Park Service's decision to transport tourists through wilderness areas was made in violation of NEPA, we do not reach the question of whether the decision-making process also violated the procedural requirements of the Federal Advisory Committee Act, 5 U.S.C.App. 2.

Norton v. Southern Utah Wilderness Alliance

Justice Scalia delivered the opinion of the Court. In this case, we must decide whether the authority of a federal court under the Administrative Procedure Act (APA) to “compel agency action unlawfully withheld or unreasonably delayed,” 5 U. S. C. § 706(1), extends to the review of the United States Bureau of Land Management’s stewardship of public lands under certain statutory provisions and its own planning documents. I Almost half the State of Utah, about 23 million acres, is federal land administered by the Bureau of Land Management (BLM), an agency within the Department of Interior. For nearly 30 years, BLM’s management of public lands has been governed by the Federal Land Policy and Management Act of 1976 (FLPMA), 90 Stat. 2744, 43 U. S. C. § 1701 et seq., which “established a policy in favor of retaining public lands for multiple use management.” Lujan v. National Wildlife Federation, 497 U. S. 871, 877 (1990). “Multiple use management” is a deceptively simple term that describes the enormously complicated task of striking a balance among the many competing uses to which land can be put, “including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and [uses serving] natural scenic, scientific and historical values.” 43 U. S. C. § 1702(c). A second management goal, “sustained yield,” requires BLM to control depleting uses over time, so as to ensure a high level of valuable uses in the future. § 1702(h). To these ends, FLPMA establishes a dual regime of inventory and planning. Sections 1711 and 1712, respectively, provide for a comprehensive, ongoing inventory of federal lands, and for a land use planning process that “projeet[s]” “present and future use,” § 1701(a)(2), given the lands’ inventoried characteristics. Of course not all uses are compatible. Congress made the judgment that some lands should be set aside as wilderness at the expense of commercial and recreational uses. A preFLPMA enactment, the Wilderness Act of 1964, 78 Stat. 890, provides that designated wilderness areas, subject to certain exceptions, “shall [have] no commercial enterprise and no permanent road,” no motorized vehicles, and no manmade structures. 16 U. S. C. § 1133(c). The designation of a wilderness area can be made only by Act of Congress, see 43 U.S.C. § 1782(b). Pursuant to §1782, the Secretary of the Interior (Secretary) has identified so-called “wilderness study areas” (WSAs), roadless lands of 5,000 acres or more that possess “wilderness characteristics,” as determined in the Secretary’s land inventory. § 1782(a); see 16 U.S.C. § 1131(c). As the name suggests, WSAs (as well as certain wild lands identified prior to the passage of FLPMA) have been subjected to further examination and public comment in order to evaluate their suitability for designation as wilderness. In 1991, out of 3.3 million acres in Utah that had been identified for study, 2 million were recommended as suitable for wilderness designation. 1 U. S. Dept. of Interior, BLM, Utah Statewide Wilderness Study Report 3 (Oct. 1991). This recommendation was forwarded to Congress, which has not yet acted upon it. Until Congress acts one way or the other, FLPMA provides that “the Secretary shall continue to manage such lands ... in a manner so as not to impair the suitability of such areas for preservation as wilderness.” 43 U. S. C. § 1782(c). This nonimpairment mandate applies to all WSAs identified under § 1782, including lands considered unsuitable by the Secretary. See §§ 1782(a), (b); App. 64 (BLM Interim Management Policy for Lands Under Wilderness Review). Aside from identification of WSAs, the main tool that BLM employs to balance wilderness protection against other uses is a land use plan — what BLM regulations call a “resource management plan.” 43 CFR § 1601.0 — 5(k) (2003). Land use plans, adopted'-after notice and comment, are “designed to guide and control future management actions,” § 1601.0-2. See 43 U. S. C. § 1712; 43 CFR § 1610.2 (2003). Generally, a land use plan describes, for a particular area, allowable uses, goals for future condition of the land, and specific next steps. § 1601.0-5(k). Under FLPMA, “[t]he Secretary shall manage the public lands under principles of multiple use and sustained yield, in accordance with the land use plans ... when they are available.” 43 U. S. C. § 1732(a). Protection of wilderness has come into increasing conflict with another element of multiple use, recreational use of so-called off-road vehicles (ORVs), which include vehicles primarily designed for off-road use, such as lightweight, four-wheel “all-terrain vehicles,” and vehicles capable of such use, such as sport utility vehicles. See 43 CFR § 8340.0-5(a) (2003). According to the United States Forest Service’s most recent estimates, some 42 million Americans participate in off-road travel each year, more than double the number two decades ago. H. Cordell, Outdoor Recreation for 21st Century America 40 (2004). United States sales of all-terrain vehicles alone have roughly doubled in the past five years, reaching almost 900,000 in 2003. See Tanz, Making Tracks, Making Enemies, N. Y. Times, Jan. 2, 2004, p. F1, col. 5; Discover Today’s Motorcycling, Motorcycle Industry Council, Press Release (Feb. 13, 2004), http:// www.motorcycles.org (all Internet materials as visited June 4, 2004, and available in Clerk of Court’s case file). The use of ORVs on federal land has negative environmental consequences, including soil disruption and compaction, harassment of animals, and annoyance of wilderness lovers. See Brief for Natural Resources Defense Council et al. as Amici Curiae 4-7, and studies cited therein. Thus, BLM faces a classic land use dilemma of sharply inconsistent uses, in a context of scarce resources and congressional silence with respect to wilderness designation. In 1999, respondents Southern Utah Wilderness Alliance and other organizations (collectively SUWA) filed this action in the United States District Court for Utah against petitioners BLM, its Director, and the Secretary. In its second amended complaint, SUWA sought declaratory and injunc-tive relief for BLM’s failure to act to- protect public lands in Utah from damage caused by ORV use. SUWA made three claims that are relevant here: (1) that BLM had violated its nonimpairment obligation under § 1782(c) by allowing degradation in certain WSAs; (2) that BLM had failed to implement provisions in its land use plans relating to ORV use; and (3) that BLM had failed to take a “hard look” at whether, pursuant to the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U. S. C. §4321 et seq., it should undertake supplemental environmental analyses for areas in which ORV use had increased. SUWA contended that it could sue to remedy these three failures to act pursuant to the APA’s provision of a cause of action to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U. S. C. §706(1). The District Court entered a dismissal with respect to the three claims. A divided panel of the Tenth Circuit reversed. 301 F. 3d 1217 (2002). The majority acknowledged that under § 706(1), “federal courts may order agencies to act only where the agency fails to carry out a mandatory, nondiscre-tionary duty.” Id., at 1226. It concluded, however, that BLM’s nonimpairment obligation was just such a duty, and therefore BLM could be compelled to comply. Under similar reasoning, it reversed the dismissal with respect to the land use plan claim; and likewise reversed dismissal of the NEPA claim. We granted certiorari. 540 U. S. 980 (2003). II All three claims at issue here involve assertions that BLM failed to take action with respect to ORV use that it was required to take. Failures to act are sometimes remediable under the APA, but not always. We begin by considering what limits the APA places upon judicial review of agency inaction. The APA authorizes suit by “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U. S. C. § 702. Where no other statute provides a private right of action, the “agency action” complained of must be “final agency action.” §704 (emphasis added). “[A]gency action” is defined in § 551(13) to include “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” (Emphasis added.) The APA provides relief for a failure to act in § 706(1): “The reviewing court shall... compel agency action unlawfully withheld or unreasonably delayed.” Sections 702, 704, and 706(1) all insist upon an “agency action,” either as the action complained of (in §§ 702 and 704) or as the action to be compelled (in §706(1)). The definition of that term begins with a list of five categories of decisions made or outcomes implemented by an agency — “agency rule, order, license, sanction [or] relief.” §551(13). All of those categories involve circumscribed, discrete agency actions, as their definitions make clear: “an agency statement of . . . future effect designed to implement, interpret, or prescribe law or policy” (rule); “a final disposition ... in a matter other than rule making” (order); a “permit ... or other form of permission” (license); a “prohibition . . . or . . . taking [of] other compulsory or restrictive action” (sanction); or a “grant of money, assistance, license, authority,” etc., or “recognition of a claim, right, immunity,” etc., or “taking of other action on the application or petition of, and beneficial to, a person” (relief). §§551(4), (6), (8), (10), (11). The terms following those five categories of agency action are not defined in the APA: “or the equivalent or denial thereof, or failure to act.” § 551(13). But an “equivalent . . . thereof” must also be discrete (or it would not be equivalent), and a “denial thereof” must be the denial of a discrete listed action (and perhaps denial of a discrete equivalent). The final term in the definition, “failure to act,” is in our view properly understood as a failure to take an agency action — that is, a failure to take one of the agency actions (including their equivalents) earlier defined in §551(13). Moreover, even without this equation of “act” with, “agency action” the interpretive canon of ejusdem generis would attribute to the last item (“failure to act”) the same characteristic of discreteness shared by all the preceding items. See, e. g., Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U. S. 371, 384-385 (2003). A “failure to act” is not the same thing as a “denial.” The latter is the agency’s act of saying no to a request; the former is simply the omission of an action without formally rejecting a request — for example, the failure to promulgate a rule or take some decision by a statutory deadline. The important point is that a “failure to act” is properly understood to be limited, as are the other items in §551(13), to a discrete action. A second point central to the analysis of the present case is that the only agency action that can be compelled under the APA is action legally required. This limitation appears in § 706(1)’s authorization for courts to “compel agency action unlawfully withheld.” (Emphasis added.) In this regard the APA carried forward the traditional practice prior to its passage, when judicial review was achieved through use of the so-called prerogative writs — principally writs of mandamus under the All Writs Act, now codified at 28 U. S. C. § 1651(a). The mandamus remedy was normally limited to enforcement of “a specific, unequivocal command,” ICC v. New York, N. H. & H. R. Co., 287 U. S. 178, 204 (1932), the ordering of a “ ‘precise, definite act. . . about which [an official] had no discretion whatever,’” United States ex rel. Dunlap v. Black, 128 U. S. 40, 46 (1888) (quoting Kendall v. United States ex rel. Stokes, 12 Pet. 524, 613 (1838)). See also ICC v. United States ex rel. - Humboldt S. S. Co., 224 U. S. 474, 484 (1912). As described in the Attorney General’s Manual on the APA, a document whose reasoning we have often found persuasive, see, e. g., Darby v. Cisneros, 509 U. S. 137, 148, n. 10 (1993); Chrysler Corp. v. Brown, 441 U. S. 281, 302, n. 31 (1979); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 546 (1978), §706(1) empowers a court only to compel an agency “to perform a ministerial or non-discretionary act,” or “to take action upon a matter, without directing how it shall act.” Attorney General’s Manual on the Administrative Procedure Act 108 (1947) (emphasis added). See also L. Jaffe, Judicial Control of Administrative Action 372 (1965); K. Davis, Administrative Law §257, p. 925 (1951). Thus, a claim under §706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take. These limitations rule out several kinds of challenges. The limitation to discrete agency action precludes the kind of broad programmatic attack we rejected in Lujan v. National Wildlife Federation, 497 U. S. 871 (1990). There we considered a challenge to BLM’s land withdrawal review program, couched as unlawful agency “action” that the plaintiffs wished to have “set aside” under § 706(2). Id., at 879. We concluded that the program was not an “agency action”: “[Respondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congréss, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular ‘agency action’ that causes it harm.” Id., at 891 (emphasis in original). The plaintiffs in National Wildlife Federation would have fared no better if they had characterized the agency’s alleged “failure to revise land use plans in proper fashion” and “failure to consider multiple use,” ibid., in terms of “agency action unlawfully withheld” under § 706(1), rather than agency action “not in accordance with law” under § 706(2). The limitation to required agency action rules out judicial direction of even discrete agency action that is not demanded by law (which includes, of course, agency regulations that have the force of law). Thus, when an agency is compelled by law to act within a certain time period, but the manner of its action is left to the agency’s discretion, a court can compel the agency to act, but has no power to specify what the action must be. For example, 47 U. S. C. § 251(d)(1), which required the Federal Communications Commission “to establish regulations to implement” interconnection requirements “fwjithin 6 months” of the date of enactment of the Telecommunications Act of 1996, would have supported a judicial decree under the APA requiring the prompt issuance of regulations, but not a judicial decree setting forth the content of those regulations. Ill A With these principles in mind, we turn to SUWA’s first claim, that by permitting ORV use in certain WSAs, BLM violated its mandate to “continue to manage [WSAs] ... in a manner so as not to impair the suitability of such areas for preservation as wilderness,” 43 U. S. C. § 1782(c). SUWA relies not only upon § 1782(c) but also upon a provision of BLM’s Interim Management Policy for Lands Under Wilderness Review, which interprets the nonimpairment mandate to require BLM to manage WSAs so as to prevent them from being “degraded so far, compared with the area’s values for other purposes, as to significantly constrain the Congress’s prerogative to either designate [it] as wilderness or release it for other uses.” App. 65. Section 1782(c) is mandatory as to the object to be achieved, but it leaves BLM a great deal of discretion in deciding how to achieve it. It assuredly does not mandate, with the clarity necessary to support judicial action under § 706(1), the total exclusion of ORV use. SUWA argues that §1782 does contain a categorical imperative, namely, the command to comply with the nonim-pairment mandate. It contends that a federal court could simply enter a general order compelling compliance with that mandate, without suggesting any particular manner of compliance. It relies upon the language from the Attorney General’s Manual quoted earlier, that a court can “take action upon a matter, without directing how [the agency] shall act,” and upon language in a case cited by the Manual noting that “mandamus will lie . . . even though the act required involves the exercise of judgment and discretion,” Safeway Stores, Inc. v. Brown, 138 F. 2d 278, 280 (Emerg. Ct. App. 1943). The action referred to in these excerpts, however, is discrete agency action, as we have discussed above. General deficiencies in compliance, unlike the failure to issue a ruling that was discussed in Safeway Stores, lack the specificity requisite for agency action. The principal purpose of the APA limitations we have discussed — and of the traditional limitations upon mandamus from which they were derived — is to protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve. If courts were empowered to enter general orders compelling compliance with broad statutory mandates, they would necessarily be empowered, as well, to determine whether compliance was achieved — which would mean that it would ultimately become the task of the supervising court, rather than the agency, to work out compliance with the broad statutory mandate, injecting the judge into day-to-day agency management. To take just a few examples from federal resources management, a plaintiff might allege that the Secretary had failed to “manage wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance,” or to “manage the [New Orleans Jazz National] [Historical [P]ark in such a manner as will preserve and perpetuate knowledge and understanding of the history of jazz,” or to “manage the [Steens Mountain] Cooperative Management and Protection Area for the benefit of present and future generations.” 16 U. S. C. §§ 1333(a), 410bbb-2(a)(1), 460nnn-12(b). The prospect of pervasive oversight by federal courts over the manner and pace of agency compliance with such congressional directives is not contemplated by the APA. B SUWA’s second claim is that BLM failed to comply with certain provisions in its land use plans, thus contravening the requirement that “[t]he Secretary shall manage the public lands ... in accordance with the land use plans ... when they are available.” 43 U. S. C. § 1732(a); see also 43 CFR § 1610.5-3(a) (2003) (“All future resource management authorizations and actions ... and subsequent more detailed or specific planning, shall conform to the approved plan”). The relevant count in SUWA’s second amended complaint alleged that BLM had violated a variety of commitments in its land use plans, but over the course of the litigation these have been reduced to two, one relating to the 1991 resource management plan for the San Rafael area, and the other to various aspects of the 1990 ORV implementation plan for the Henry Mountains area. The actions contemplated by the first of these alleged commitments (completion of a route designation plan in the San Rafael area), and by one aspect of the second (creation of “use supervision files” for designated areas in the Henry Mountains area) have already been completed, and these claims are therefore moot. There remains the claim, with respect to the Henry Mountains plan, that “in light of damage from ORVs in the Factory Butte area,” a sub-area of Henry Mountains open to ORV use, “the [plan] obligated BLM to conduct an intensive ORV monitoring program.” Brief for SUWA 7-8. This claim is based upon the plan’s statement that the Factory Butte area “will be monitored and closed if warranted.” App. 140. SUWA does not contest BLM’s assertion in the court below that informal monitoring has taken place for some years, see Brief for Appellee Secretary of Interior et al. in No. 01-4009 (CA10), p. 23, but it demands continuing implementation of a monitoring program. By this it apparently means to insist upon adherence to the plan’s general discussion of “Use Supervision and Monitoring” in designated areas, App. 148-149, which (in addition to calling for the use supervision files that have already been created) provides that “[r]esource damage will be documented and recommendations made for corrective action,” “[mjonitoring in open areas will focus on determining damage which may necessitate a change in designation,” and “emphasis on use supervision will be placed on [limited and closed areas].” Id., at 149. SUWA acknowledges that a monitoring program has recently been commenced. Brief for SUWA 12. In light, however, of the continuing action that existence of a “program” contemplates, and in light of BLM’s contention that the program cannot be compelled under § 706(1), this claim cannot be considered moot. The statutory directive that BLM manage “in accordance with” land use plans, and the regulatory requirement that authorizations and actions “conform to” those plans, prevent BLM from taking actions inconsistent with the provisions of a land use plan. Unless and until the plan is amended, such actions can be set aside as contrary to law pursuant to 5 U. S. G. § 706(2). The claim presently under discussion, however, would have us go further, and conclude that a statement in a plan that BLM “will” take this, that, or the other action, is a binding commitment that can be compelled under § 706(1). In our view it is not — at least absent clear indication of binding commitment in the terms of the plan. FLPMA describes land use plans as tools by which “present and future use is projected” 48 U. S. C. § 1701(a)(2) (emphasis added). The implementing regulations make clear that land use plans are a preliminary step in the overall process of managing public lands — “designed to guide and control future management actions and the development of subsequent, more detailed and limited scope plans for resources and uses.” 43 CFR § 1601.0-2 (2003). The statute and regulations confirm that a land use plan is not ordinarily the medium for affirmative decisions that implement the agency’s “projections].” Title 43 U. S. C. § 1712(e) provides that “[t]he Secretary may issue management decisions to implement land use plans” — the decisions, that is, are distinct from the plan itself. Picking up the same theme, the regulation defining a land use plan declares that a plan “is not a final implementation decision on actions which require further specific plans, process steps, or decisions under specific provisions of law and regulations.” 43 CFR § 1601.0~5(k) (2003). The BLM’s Land Use Planning Handbook specifies that land use plans are normally not used to make site-specific implementation decisions. See Handbook II — 2. Plans also receive a different agency review process from implementation decisions. Appeal to the Department’s Board of Land Appeals is available for “a specific action being proposed to implement some portion of a resource management plan or amendment.” 43 CFR §1610.5-3(b) (2003). However, the Board, which reviews “decisions rendered by Departmental officials relating to ... [t]hé use and disposition of public lands and their resources,” §4.1(b)(3)(i), does not review the approval of a plan, since it regards a plan as a policy determination, not an implementation decision. See, e. g., Wilderness Society, 109 I. B. L. A. 175, 178 (1989); Wilderness Society, 90 I. B. L. A. 221, 224 (1986); see also Handbook II — 2, IV-3. Plans are protested to the BLM director, not appealed. The San Rafael plan provides an apt illustration of the immense scope of projected activity that a land use plan can embrace. Over 100 pages in length, it presents a comprehensive management framework for 1.5 million acres of BLM-administered land. Twenty categories of resource management are separately discussed, including mineral extraction, wilderness protection, livestock grazing, preservation of cultural resources, and recreation. The plan lays out an ambitious agenda for the preparation of additional, more detailed plans and specific next steps for implementation. Its introduction notes that “[a]n [ORV] implementation plan is scheduled to be prepared within 1 year following approval of the [San Rafael plan].” San Rafael Plan 9. Similarly “scheduled for preparation” are activity plans for certain environmentally sensitive areas, “along with allotment management plans, habitat management plans, a fire management plan, recreation management plans . . . , cultural resource management plans for selected sites, watershed activity plans, and the wild and scenic river management plan.” Ibid. The projected schedule set forth in the plan shows “[ajnticipated [ijmplementation” of some future plans within one year, others within three years, and still others, such as certain recreation and cultural resource management plans, at a pace of “one study per fiscal year.” Id., at 95-102. Quite unlike a specific statutory command requiring an agency to promulgate regulations by a certain date, a land use plan is generally a statement of priorities; it guides and constrains actions, but does not (at least in the usual case) prescribe them. It would be unreasonable to think that either Congress or the agency intended otherwise, since land use plans nationwide would commit the agency to actions far in the future, for which funds have not yet been appropriated. Some plans make explicit that implementation of their programmatic content is subject to budgetary constraints. See Brief for Petitioners 42-43, and n. 18 (quoting from such plans). While the Henry Mountains plan does not contain such a specification, we think it must reasonably be implied. A statement by BLM about what it plans to do, at some point, provided it has the funds and there are not more pressing priorities, cannot be plucked out of context and made a basis for suit under § 706(1). Of course, an action called for in a plan may be compelled when the plan merely reiterates duties the agency is already obligated to perform, or perhaps when language in the plan itself creates a commitment binding on the agency. But allowing general enforcement of plan terms would lead to pervasive interference with BLM’s own ordering of priorities. For example, a judicial decree compelling immediate preparation of all of the detailed plans called for in the San Rafael plan would divert BLM’s energies from other projects throughout the country that are in fact more pressing. And while such a decree might please the environmental plaintiffs in the present case, it would ultimately operate to the detriment of sound environmental management. Its predictable consequence would be much vaguer plans from BLM in the future — making coordination with other agencies more difficult, and depriving the public of important information concerning the agency’s long-range intentions. We therefore hold that the Henry Mountains plan’s statements to the effect that BLM will conduct “Use Supervision and Monitoring” in designated areas — like other “will do” projections of agency action set forth in land use plans — are not a legally binding commitment enforceable under §706(1). That being so, we find it unnecessary to consider whether the action envisioned by the statements is sufficiently discrete to be amenable to compulsion under the APA. IV Finally, we turn to SUWA’s contention that BLM failed to fulfill certain obligations under NEPA. Before addressing whether a NEPA-required duty is actionable under the APA, we must decide whether NEPA creates an obligation in the first place. NEPA requires a federal agency to prepare an environmental impact statement (EIS) as part of any “proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.” 42 U. S. C. §4332(2)(C). Often an initial EIS is sufficient, but in certain circumstances an EIS must be supplemented. See Marsh v. Oregon Natural Resources Council, 490 U. S. 360, 370-374 (1989). A regulation of the Council on Environmental Quality requires supplementation where “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 CFR § 1502.9(c)(1)(ii) (2003). In Marsh, we interpreted §4332 in light of this regulation to require an agency to take a “hard look” at the new information to assess whether supplementation might be necessary. 490 U. S., at 385; see id., at 378-385. SUWA argues that evidence of increased ORV use is “significant new circumstances or information” that requires a “hard look.” We disagree. As we noted in Marsh, supplementation is necessary only if “there remains ‘major Federal actio[n]’ to occur,” as that term is used in §4332(2)(C). Id., at 374. In Marsh, that condition was met: The dam construction project that gave rise to environmental review was not yet completed. Here, by contrast, although the “[aJp-proval of a [land use plan]” is a “major Federal action” requiring an EIS, 43 CFR § 1601.0-6 (2003) (emphasis added), that action is completed when the plan is approved. The land use plan is the “proposed action” contemplated by the regulation. There is no ongoing “major Federal action” that could require supplementation (though BLM is required to perform additional NEPA analyses if a plan is amended or revised, see §§ 1610.5-5, 5-6). * * * The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Of course § 706(1) also authorizes courts to “compel agency action .. . unreasonably delayed” — but a delay cannot be unreasonable with respect to action that is not required. Title 5 U. S. C. § 706(2) provides, in relevant part: “The reviewing court shall— “(2) hold unlawful and set aside agency action ... found to be— “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ....” See U. S. Dept. of Interior, BLM, San Rafael Route Designation Plan (2003), http://www.ut.blm.gov/sanrafaelohv/wtheplan.htm; 3 App. to Brief for Appellants in No. 01-4009 (CA10), p. 771 (declaration of manager for relevant BLM field office, noting the establishment of monitoring files for the Henry Mountains area); Brief for Respondent SUWA et al. 12 (hereinafter Brief for SUWA) (acknowledging completion of these actions). It is arguable that the complaint sought not merely creation but continuing maintenance of use supervision files, in which case (for the reasons set forth with respect to the ORV monitoring program later in text) that claim would not be moot. If so, what we say below with regard to the merits of the ORV monitoring claim would apply equally to the use supervision fil.e claim. The exceptions “are normally limited to those required by regulation, such as designating [ORV] areas, roads, and trails (see 43 CFR 8342).” U. S. Dept. of Interior, BLM, Land Use Planning Handbook II — 2 (2000) (hereinafter Handbook). See, e. g., U. S. Dept. of Interior, BLM, San Rafael Final Resource Management Plan 63 (1991) (hereinafter San Rafael Plan) (available at http://www.ut.blm.gov/planning/OTHERS/ SRARMP-ROD%20MAY %201991.pdf). We express no view as to whether a court could, under § 706(1), enforce a duty to monitor ORV use imposed by a BLM regulation, see 43 CFR § 8342.3 (2003), That question is not before us.

Wilderness Society v. United States Fish & Wildlife Service

OPINION GOULD, Circuit Judge. We consider an action brought by the Wilderness Society and the Alaska Center for the Environment (“Plaintiffs”) challenging a decision by the United States Fish and Wildlife Service (“USFWS”), to grant a permit for a sockeye salmon enhancement project (“Enhancement Project”) that annually introduces about six million hatchery-reared salmon fry into Tustumena Lake, the largest freshwater lake in the Kenai National Wildlife Refuge (“Kenai Refuge”) and the Kenai Wilderness. Plaintiffs assert that the USFWS permit for the Enhancement Project violated the Wilderness Act, 16 U.S.C. §§ 1131-1136, by offending its mandate to preserve the “natural conditions” that are a part of the “wilderness character” of the Kenai Wilderness, id. §§ 1131, 1133, and by sanctioning an impermissible “commercial enterprise” within a designated wilderness area. Id. § 1133(c). Plaintiffs also claim that the Enhancement Project violates the National Wildlife Refuge Administration Act of 1966, 16 U.S.C. §§ 668dd-668ee (“Refuge Act”), because the project is not consistent with the purposes of the Kenai Refuge as set forth in the Refuge Act. Id. § 668dd. The district court denied Plaintiffs’ motion for summary judgment and sua sponte entered summary judgment in favor of the USFWS. After final judgment was entered a timely appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1331. We conclude that the district court erred in finding that the Enhancement Project is not a “commercial enterprise” that Congress prohibited within the designated wilderness. We reverse and remand so that the final decision of the USFWS may be set aside, the Enhancement Project enjoined, and judgment entered for Plaintiffs. I A The area now known as the Kenai Refuge has been recognized as protected wilderness by the federal government for more than sixty years. In 1941, President Franklin D. Roosevelt issued an Executive Order designating about two million acres of land on Alaska’s Kenai Peninsula, including Tustumena Lake, as the Kenai National Moose Range for the purpose of “protecting the natural breeding and feeding range of the giant Kenai moose.” Exec. Order No. 8979, 6 Fed. Reg. 6471 (Dec. 16, 1941). In 1964 Congress passed the Wilderness Act, which established the National Wilderness Preservation System with the explicit statutory purpose “to assure that an increasing population, accompanied by expanding settlement and growing mechanization, does not occupy and modify all areas within the United States and its possessions, leaving no lands designated for preservation and protection in their natural condition.” 16 U.S.C. § 1131(a). Congress thereby expressed support for the principle that wilderness has value to society that requires conservation and preservation. As President Lyndon B. Johnson reportedly said upon signing of the Wilderness Act in 1964, “[i]f future generations are to remember us with gratitude rather than contempt, we must leave them more than the miracles of technology. We must leave them a glimpse of the world as it was in the beginning, not just after we got through with it.” National Park Service, Grand Canyon National Park Wilderness Management Plan 1-2 (1989), available at http://www.nps.gov/grca/wilderness/doeu-ments/ sec-one.pdf. The Wilderness Act required the Secretary of the Interior to make recommendations to the President as to the suitability of existing national parks, refuges, and game ranges for preservation as wilderness. 16 U.S.C. § 1132(c). Upon recommendation of the President, Congress was empowered to designate existing national park, wildlife refuge, and game range lands as wilderness. Id. Two years after enacting the Wilderness Act, Congress passed the Refuge Act for the purpose of “consolidating the authorities relating to the various categories of areas that are administered ... for the conservation of fish and wildlife.” 16 U.S.C. § 668dd(a)(l). In furtherance of this goal, the Refuge Act established the “National Wildlife Refuge System,” under the administration of USFWS. Id. In 1980, Congress enacted the Alaska National Interest Lands Conservation Act (“ANILCA”), Pub.L. No. 96-487, Title III, § 702(7), 94 Stat. 2371 (1980), to control the management of Alaska refuge lands. ANILCA expanded the Kenai National Moose Range by nearly a quarter-million acres, renamed it the Kenai National Wildlife Refuge, ANILCA § 303(4); 16 U.S.C. § 668dd notes, and further set aside 1.35 million acres of the Refuge, including Tus-tumena Lake, as the Kenai Wilderness, a designated wilderness pursuant to Congress’s authority to protect lands under § 1132(c) of the Wilderness Act. ANILCA § 702(7); 16 U.S.C. § 1132(c) & notes. ANILCA recited that the purposes of the Kenai Refuge encompass, among other aims, the “conserv[ation of] fish and wildlife populations and habitats in their natural diversity.” ANILCA § 303(4). B Tustumena Lake lies near the western edge of the Kenai Refuge and within the Kenai Wilderness. Tustumena Lake is the largest freshwater lake located within the Kenai Refuge and is the fifth largest freshwater lake in the State of Alaska. The lake’s outlet is the Kasilof River, which drains into the Cook Inlet, a tidal estuary that flows into the Gulf of Alaska and the Pacific Ocean. As a result of its remote location, the ecosystem around and within Tustumena Lake is in a natural state. This ecosystem supports several species of anadromous fish, including sockeye salmon, which spawn within the Kasilof River watershed. A commercial fishing fleet, operating outside the boundaries of the Kenai Refuge, intercepts and harvests these sockeye salmon during their annual run from the Gulf of Alaska back to the Kasilof River, Tustumena Lake, and other spawning streams. The antecedents of the present Enhancement Project date back to 1974, when the Alaska Department of Fish and Game (“ADF & G”) first conducted a sockeye salmon egg collection at Tustumena Lake as part of a research project designed to test the ability of the ecosystem to produce fish. The eggs were incubated at the Crooked Creek Hatchery, outside of the Kenai Refuge, and the resulting fry were stocked outside of the Kenai Refuge in the spring of 1975. In 1976, fry were first released into Tustumena Lake, and since have been released into Tustumena Lake in all but two subsequent years. The number of fry stocked yearly in Tustume-na Lake has ranged from a low of 400,000 in 1978 to a high of 17,050,000 in 1984. Since 1987, the number of fry released annually into the lake has been slightly greater than 6 million. Before 1980, ADF & G operated the Enhancement Project without a special use permit, and ADF & G did not seek permits for the operation of the project. In 1980, following passage of ANILCA, the USFWS’s Refuge Manager for the Kenai Refuge notified ADF & G that special use permits would be required for all ongoing projects within the Refuge. In 1985, the USFWS and ADF &' G entered into a Memorandum of Understanding that allowed ADF & G annually to obtain a special use permit for the Enhancement Project to study the effect of stocking on native lake fish and on the incidence of disease within the fish population. In 1989, the USFWS and ADF & G reached a joint agreement that by 1993 a decision should be made either to discontinue the research project at Tustumena Lake or to elevate it to enhance commercial fishing operations for the benefit of the Cook Inlet fishing industry. In a 1992 report, ADF & G requested that the project become an operational enhancement project. This report cited two reasons for conversion of the project. First, ADF & G concluded that the risk of adverse impacts on the Tustumena Lake ecosystem appeared to be lowered at a stocking rate of about 6 million fry per year. Second, ADF & G noted that, beginning in fiscal year 1992, a reduced state budget would require curtailing project evaluation. In 1993, ADF & G entered into a contract with the Cook Inlet Aquaculture Association (“CIAA”) to staff and run the Crooked Creek Hatchery and its hatchery programs. The CIAA is a private, non-profit corporation “comprised of associations representative of commercial fishermen in the region” as well as “other user groups interested in fisheries within the region.” Alaska Stat. § 16.10.380(a) (2003). According to the USFWS’s final Environmental Assessment of the Enhancement Project, the CIAA is “organized for the purpose of engaging in salmon enhancement work throughout the Cook Inlet. Region.” The mission statement of the CIAA, according to the Environmental Assessment, is to: ,(1) protect self-perpetuating salmon stocks and the habitat upon which they depend; (2) rehabilitate self-perpetuating salmon stocks; (3) rehabilitate salmon habitat and (4) maximize the value of the Cook Inlet ... common property salmon resources by applying science and enhancement technology to supplement the value attained from protection and habitat rehabilitation of self-perpetuating salmon stocks. The CIAA relies on funding from two sources. First, the Cook Inlet commercial salmon industry imposes a voluntary two percent tax on the value of its fishermen’s annual salmon harvest. Second, the CIAA generates income through producing hatchery-raised salmon from the surplus fry not used to stock Tustumena Lake. In May 1994, the USFWS’s Regional Director contacted ADF & G in order to implement an evaluation of the Enhancement Project’s status and its future. Acknowledging that the Enhancement Project was initiated as an experimental project with the purpose of “supplementing] the commercial sockeye salmon fishery in the Cook Inlet,” the Regional Director set forth environmental concerns regarding the project and recommended that the Enhancement Project be evaluated through the National Environmental Policy Act (“NEPA”) review process. Among the .concerns raised were that the Enhancement Project potentially violated “the intent and purpose of the Wilderness Act, ANILCA, and regional policy,” and that the project would threaten “a unique, glacial, natural freshwater spawning and rearing ■ aquatic ecosystem .... merely to provide additional economic benefit primarily for Cook Inlet east side net fishermen.” In late 1995, the CIAA submitted a draft Environmental Assessment (“EA”) to the USFWS for comment and review. See 40 C.F.R. § 1506.5(b) (2003); 550 FW 1 § 2.5(E)(2002 draft). The draft assessment proposed consideration of five action alternatives, from a total elimination of the Enhancement Project to a tripling of the number of salmon fry stocked in Tustume-na Lake, and recommended that the Enhancement Project continue at the same scale, with an annual stocking of about six million fry. After circulation and agency comment on the 1995 draft, in June 1997 the USFWS and the CIAA jointly released a draft EA of the Enhancement Project, which addressed concerns regarding the project, but the USFWS in a separate document concluded that mitigation measures could minimize risks of the project. During the 45-day period for public comment and review, the Wilderness Society submitted comments challenging the legality of “any fisheries enhancement program in designated Wilderness for the purpose of providing for the stocking of commerce” and questioning the compatibility of the project with the area’s wilderness designation. In August 1997, the final EA of the Enhancement Project was released. In a simultaneously released “Mitigated Finding of No Significant Impact,” the USFWS concluded that “mitigative measures” contained in the Special Use Permit would minimize risks associated with the Enhancement Project, and that preparation of an Environmental Impact Statement was not required. Also in August 1997, the Kenai Refuge Manager issued a Wilderness Act Consistency Review, addressing legal concerns regarding whether the Enhancement Project was consistent with the Wilderness Act’s mandate to preserve wilderness in its natural condition and whether the project was a prohibited commercial enterprise. Referring to a legal opinion prepared by the United States Department of Interior’s Regional Solicitor’s Office, which concluded that the Enhancement Project “does not have to contribute to achieving Refuge purposes but it may not significantly conflict with them,” the Kenai Refuge Manager, in the Consistency Review, dismissed concerns that the project altered natural conditions and was a commercial enterprise. The Kenai Refuge Manager concluded that the Enhancement Project was consistent with the Wilderness Act, which he viewed as a legislative compromise not reflecting absolute preservationist values. The Refuge Manager also suggested that, because the State of Alaska had previously administered the project, criticism that the Enhancement Project was a commercial enterprise raised “a distinction without a difference.” In August 1997, the Refuge Manager also released a Compatibility Determination, which concluded that the Enhancement Project “cannot ... be considered as supporting refuge purposes, but neither can it be found incompatible with them.” After issuance of these documents, the USFWS on August 8, 1997, issued a Special Use Permit to the CIAA for the Enhancement Project. Under the terms of this permit, each summer the CIAA establishes a temporary camp within the Kenai Wilderness at the mouth of Bear Creek, which flows into Tustumena Lake, and catches about 10,000 returning sockeye salmon, which yield about 10 million eggs. These eggs are transported to a hatchery outside the Kenai Wilderness. The following spring about six million salmon fry produced by the eggs are stocked and returned to the wilderness in Bear Creek. II The Administrative Procedure Act (“APA”) governs judicial review of agency action. 5 U.S.C. § 701 et seq. Under the APA, we may set aside formal agency action only if “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A); Center for Biological Diversity v. Veneman, 335 F.3d 849, 853 (9th Cir.2003). A There is disagreement among the parties as to what level of deference, if any, we should accord the USFWS’s decision to permit the Enhancement Project. Defendant USFWS maintains that the case is controlled by Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and that USFWS decisions interpreting the Wilderness Act and Refuge Act must be given broad deference. Plaintiffs, on the other hand, argue that the challenged project offends the literal terms of the Wilderness Act by not preserving the designated wilderness area and by sanctioning a commercial enterprise within it. Responding to the defendant’s argument for Chevron deference, which was adopted by the district court, Plaintiffs rely on the Supreme Court’s clarification of Chevron in United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001), urging that the USFWS’s permitting decision is entitled at most to “respect” as set forth in Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). In Chevron, the Supreme Court set forth a two-step test for judicial review of administrative agency interpretations of federal law. Under the first step: “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. Congressional intent may be determined by “traditional tools of statutory construction,” and if a court using these tools ascertains that Congress had a clear intent on the question at issue, that intent must be given effect as law. Id. at 843 n. 9, 104 S.Ct. 2778; see Defenders of Wildlife v. Browner, 191 F.3d 1159, 1164 (9th Cir.1999) (stating that questions of congressional intent “are still firmly within the province of the courts under Chevron”). Conversely, at step two of Chevron, when applicable, we recognize that if a statute is silent or ambiguous with respect to the issue at hand, then the reviewing court must defer to the agency so long as “the agency’s answer is based on a permissible construction of the statute.” 467 U.S. at 843, 104 S.Ct. 2778. In such a case an agency’s interpretation of a statute will be permissible, unless “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844,104 S.Ct. 2778. Chevron considered only formal notice- and-comment rule-making and did not state what other types of agency decisions should be given such deference. In Mead, the Supreme Court clarified that “administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” 533 U.S. at 226-27, 121 S.Ct. 2164 (emphasis added). Mead also clarified the weight that a reviewing court should give to administrative decisions not meeting these standards. Quoting Skidmore, the Court held that the deference to be accorded to such decisions depends upon “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Mead, 533 U.S. at 228, 121 S.Ct. 2164(quoting Skid-more, 323 U.S. at 140, 65 S.Ct. 161). With the Supreme Court’s precedents in mind, we adopt the following analysis: Under Chevron’s first-step test, we ask whether the Enhancement Project offends the plain meaning and manifest congressional intent of the Wilderness Act or the Refuge Act. If so, Congress’s intent must be enforced and that is the end of the matter. Conversely, if the statutory terms are ambiguous, then we must give Chevron deference only upon a conclusion that the USFWS’s statutory interpretation has the “force of law.” Otherwise, we give the USFWS’s view respect if persuasive based on the factors recited in Skidmore and endorsed in Mead. B Addressing the first step in the Chevron analysis, we ask “whether Congress has directly spoken to the precise question at issue.” 467 U.S. at 842, 104 S.Ct. 2778. “If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” Id. at 843 n. 9, 104 S.Ct. 2778. Canons of statutory construction help give meaning to a statute’s words. We begin with the language of the statute. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 56, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987) (“It is well settled that the starting point for interpreting a statute is the language of the statute itself.”) (internal quotation marks and citation omitted); Assoc. to Protect Hammersley, Eld & Totten Inlets v. Taylor Res., Inc., 299 F.3d 1007, 1015 (9th Cir.2002). Another fundamental canon of construction provides that “unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” United States v. Smith, 155 F.3d 1051, 1057 (9th Cir.1998) (quoting Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979)); United States v. Iverson, 162 F.3d 1015, 1022 (9th Cir.1998). It is also “a fundamental canon that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (quoting Davis v. Michigan Dep’t of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989)). If necessary to discern Congress’s intent, we may read statutory terms in light of the purpose of the statute. Thus, the structure and purpose of a- statute may also provide guidance in determining the plain meaning of its provisions. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988) (“In ascertaining the plain meaning of [a] statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.”); United States v. Lewis, 67 F.3d 225, 228-29 (9th Cir.1995) (“Particular phrases must be construed in light of the overall purpose and structure of the whole statutory scheme.”). If, under these canons, or other traditional means of determining Congress’s intentions, we are able to determine that Congress spoke clearly to preclude the Enhancement Project, then we may not defer to the USFWS’s contrary interpretation. Medtronic, Inc. v. Lohr, 518 U.S. 470, 512, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (“Where the language of the statute is clear, resort to the agency’s interpretation is improper.”). With these principles in mind, we assess Plaintiffs’ contention that the Enhancement Project offends the Wilderness Act. Most pertinent to our analysis is the Wilderness Act’s prohibition of commercial enterprise within designated wilderness. Section 4(c) of the Wilderness Act states that, subject to exceptions not relevant here, “there shall be no commercial enterprise ... within any wilderness area.” 16 U.S.C. § 1133(c). The Wilderness Act does not define the terms “commercial enterprise” or “within.” The district court considered these terms ambiguous and concluded that they do not bar the Enhancement Project. Because no statutory or regulatory provision expressly defines the meaning of the term “commercial enterprise” as used in the Wilderness Act, we first consider the common sense meaning of the statute’s words to determine whether it is ambiguous. See Iverson, 162 F.3d at 1022. Webster’s defines “enterprise” to mean “a project or undertaking.” Webster’s Ninth New Collegiate Dictionary 415 (1985). Webster’s defines “commercial” as “occupied with or engaged in commerce or work intended for commerce; of or relating to commerce.” Id at 264-65. The American Heritage Dictionary of the English Language provides a strikingly similar definition, viewing “commercial” as meaning “l.a. of or relating to commerce, b. engaged in commerce, c. involved in work that is intended for the mass market.” American Heritage Dictionary of the English Language 371 (4th ed.2000). Black’s Law Dictionary adds that “commercial” may be defined as “relates to or is connected with trade and traffic or commerce in general; is occupied with business or commerce.” Black’s Law Dictionary 270 (6th ed.1990). These definitions suggest that a commercial enterprise is a project or undertaking of or relating to commerce. We also consider the purposes of the Wilderness Act. The Act’s declaration of policy states as a goal the “preservation and protection” of wilderness lands “in their natural condition,” so as to “leave them unimpaired for future use and enjoyment as wilderness and so as to provide for the protection of these areas, [and] the preservation of their wilderness character.” 16 U.S.C. § 1131(a). The Wilderness Act further defines “wilderness,” in part, as “an area where the earth and its community of life are untrammeled by man.” Id. § 1131(c). These statutory declarations show a mandate of preservation for wilderness and the essential need to keep commerce out of it. Whatever else may be said about the positive aims of the Enhancement Project, it was not designed to advance the purposes of the Wilderness Act. The Enhancement Project to a degree places the goals and activities of commercial enterprise in the protected wilderness. The Enhancement Project is literally a project relating to commerce. The structure of the relevant provisions of the Wilderness Act may also be considered. The Wilderness Act’s opening section first sets forth the Act’s broad mandate to protect the forests, waters and creatures of the wilderness in their natural, untrammeled state. 16 U.S.C. § 1131. Section 1133, devoted to the use of wilderness areas, contains a subsection entitled “[prohibition provisions.” Id. § 1133(c). Among these provisions is a broad prohibition on the operation of all commercial enterprise within a designated wilderness, except as “specifically provided for in this Act.” Id. The following subsection of the Act enumerates “special provisions,” including exceptions to this prohibition. Id. § 1133(d). This statutory structure, with prohibitions including an express bar on commercial enterprise within wilderness, limited by specific and express exceptions, shows a clear congressional intent generally to enforce the prohibition against “commercial enterprise” when the specified exceptions are not present. See United States v. Smith, 499 U.S. 160, 167, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991) (“Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.”) (quoting Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17, 100 S.Ct. 1905, 64 L.Ed.2d 548 (1980)); Far West Fed. Bank, S.B. v. Director, Office of Thrift Supervision, 951 F.2d 1093, 1097 (9th Cir.1991) (“[W]hen Congress explicitly enumerates exceptions to a general scheme, exceptions not explicitly made should not be implied, absent evidence of contrary legislative intent.”). There is no exception given for commercial enterprise in wilderness when it has benign purpose and minimally intrusive impact. The language, purpose and structure of the Wilderness Act support the conclusion that Congress spoke clearly to preclude commercial enterprise in the designated wilderness, regardless of the form of commercial activity, and regardless of whether it is aimed at assisting the economy with minimal intrusion on wilderness values. C Because the aim of Congress in the Wilderness Act to prohibit commercial enterprise within designated wilderness is clear, we do not owe deference to the USFWS’s determination regarding the permissibility of the Enhancement Project if it is a commercial enterprise. Chevron, 467 U.S. at 842-43,104 S.Ct. 2778. The district court grounded its decision in part on an assessment that the impact on wilderness of millions of fry unseen beneath the waters of Bear Creek and Tustumena Lake was not terribly intrusive on wilderness values and that the project would hardly be noticed by those visiting the wilderness. The district court also was impressed that the CIAA was a nonprofit entity, that the State of Alaska heavily regulated the Enhancement Project, and that commercial effects of the project generally occurred years after the collection of salmon eggs and later release of the fry and were realized by commercial fishermen who sought their catch outside the wilderness bounds. We thus deal with an activity with a benign aim to enhance the catch of fishermen, with little visible detriment to wilderness, under the cooperative banner of a non-profit trade association and state regulators. Surely this fish-stocking program, whose antecedents were a state run research project, is nothing like building a McDonald’s restaurant or a Wal-Mart store on the shores of Tustumena Lake. Nor is it like conducting a commercial fishing operation within designated wilderness, which we have previously proscribed. See Alaska Wildlife Alliance v. Jensen, 108 F.3d 1065, 1069 (9th Cir.1997). Nor is the project like cutting timber, extracting minerals, or otherwise- exploiting wilderness resources in a way that is plainly destructive of their preservation. Conversely, the challenged activities do not appear to be aimed at furthering the goals of the Wilderness Act. The project is not aimed at preserving a threatened salmon run. Looked at most favorably, for the proponents of the fish-stocking project, it might be concluded that the project only negligibly alters the wild character of Tustumena Lake and is not incompatible with refuge values, though those issues are disputed. And it might also be considered that, to the extent the project is a servant of commerce, it may pose a threat to the wild, even if it operates under the eye of state and federal regulators. Before further addressing the reasoning of the district court, we acknowledge that none of our precedent, and no explicit guidance from the United States Supreme Court, has addressed how to assess “commercial enterprise” when faced with activities involving mixed purposes and effects. The lack of explicit guidance on this issue in part led the district court to defer to the agency action. Yet we have determined that Congress absolutely proscribed commercial enterprise in the wilderness, and it is a traditional judicial function to apply that prohibition to the precise facts here, to determine if the challenged project may continue consistent with the will of Congress. • • In light of Congress’s language and manifest intent, we conclude that the most sensible rule of decision to resolve whether an activity within designated wilderness bounds should be characterized as a “commercial enterprise” turns on an assessment of the purpose and effect of the activity. See Sierra Club v. Lyng, 662 F.Supp. 40, 42-43 (D.D.C.1987); see also Jensen, 108 F.3d at 1069 (9th Cir.1997). Lyng, though it involves a different issue under the Wilderness Act, is instructive on the issue of whether the Enhancement Project should be considered a commercial enterprise. In Lyng, plaintiffs challenged the legality of a United States Forest Service program to control pine beetle infestations in designated wilderness areas by an extensive tree-cutting and chemical-spraying campaign. Defendant urged that the eradication program was permissible, without justification, under section 4(d)(1) of the Wilderness Act, 16 U.S.C. § 1133(d)(1), under which the Secretary of Agriculture may take “such measures ... as may be necessary in the ■ control of fire, insects, and diseases,” within the designated wilderness. Rejecting this contention, the district court stressed that the “purpose and effect of the program [was] solely to protect commercial timber interests and private property,” and imposed an affirmative burden on the Secretary of Agriculture to justify the eradication program in light of wilderness values. Lyng, 662 F.Supp. at'42-43. The consideration of purpose and effect of challenged actions not infrequently assists in determining whether a prohibition is to be applied to complex conduct. For example, the United States Supreme Court has long looked to the purpose and effect of state action to determine whether it violates the Establishment Clause. E.g., Agostini v. Felton, 521 U.S. 203, 218, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997); Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); Mayweathers v. Newland, 314 F.3d 1062, 1068 (9th Cir.2002). It is also commonplace to assess purpose and effect to determine whether a trade restraint is unreasonable. E.g., Bd. of Trade, Chicago v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 62 L.Ed. 683 (1918); Paladin Assocs. v. Mont. Power Co., 328 F.3d 1145, 1156 & n. 9 (9th Cir.2003). Similarly, the Supreme Court has directed us to rely on considerations of purpose and effect in determining whether there is a conflict between state and federal law that leads to preemption of the state law. E.g. Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 106-07, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992); Oxygenated Fuels Ass’n v. Davis, 331 F.3d 665, 672 (9th Cir.2003). The Supreme Court has also focused our review on purpose and effect in evaluating whether a statute is properly characterized as civil or criminal. E.g., Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997); Rivera v. Pugh, 194 F.3d 1064, 1068 (9th Cir.1999). The importance of considering purpose and effect to judge the legality of challenged action is also a recurring theme in statutory law. Section five of the Voting Rights Act requires that a covered jurisdiction seeking preclearance of a proposed change to voting qualifications, prerequisites, standards, practices, or procedures demonstrate that the change “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.” 42 U.S.C. § 1973c; see Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 328, 120 S.Ct. 866, 145 L.Ed.2d 845 (2000). And copyright law prohibits the import, manufacture or distribution of devices or services with the primary purpose or effect of circumventing controls on the reproduction of copyrighted works. 17 U.S.C. § 1002(c). For all these reasons, we conclude that as a general rule both the purpose and the effect of challenged activities must be carefully assessed in deciding whether a project is a “commercial enterprise” within the wilderness that is prohibited by the Wilderness Act. Thus we will give great weight to an assessment of purpose and effect in deciding whether the Enhancement Project is a proscribed commercial enterprise within the Kenai Wilderness. This familiar test looking to “purpose and effect” is persuasive here because it gets to the heart of what has occurred in the wilderness. The primary purpose of the Enhancement Project is to advance commercial interests of Cook Inlet fishermen by swelling the salmon runs from which they will eventually make their catch. The Enhancement Project is operated by an organization primarily funded by a voluntary self-imposed tax instituted by the Cook Inlet fishing industry on the value of its salmon catch. In the words of the Kenai Refuge Manager, in a memorandum to the Department of Interior’s Regional Solicitor: The primary purpose of the enhancement activity is to supplement sockeye catches for East Side Cook Inlet set-net commercial fishermen, and for lower Cook Inlet enhancement projects. A secondary purpose is use of the excess eggs taken from Tustumena in a CIAA cost recovery project to help finance the Tustumena lake and lower Cook Inlet sockeye salmon enhancement projects. The activity is no longer experimental in nature, nor is restoration offish stocks an objective. It is strictly an enhancement effort to increase the number of sockeye salmon available to the commercial fishery. Memorandum from Kenai Refuge Manager to Regional Solicitor 2-3 (undated), ER 224-26 (emphasis added). The Fishery Management Plan for the Kenai Refuge characterizes the purpose of the Enhancement Project as “commercial enhancement of sockeye salmon populations in ... Tus-tumena lake[].” This primary purpose is not contradicted by evidence that the Enhancement Project serves other secondary noncommercial purposes, including providing a general benefit to the fishery commonly used by commercial and recreational fishermen alike. Incidental purposes do not contradict that the Enhancement Project’s principal aim is stock enhancement for the commercial fishing industry. The primary effect of the Enhancement Project is to aid commercial enterprise of fishermen. More than eighty percent of the salmon produced by the Enhancement Project are caught by commercial fishermen, who realize over $1.5 million in additional annual revenue from project-produced fish. USFWS documents highlight the primary effect of the Enhancement Project to aid commercial enterprise. For example, the July 1997 EA states that “[i]t is apparent because commercial fishing economics is emphasized ... the main reason for continuing the project is economic[ ] in nature.” . Similarly a USFWS “Briefing Statement” concludes that “[w]e should consider [CIAA’s cost-recovery harvest] to be a commercial fishing operation.” The 1997 Compatibility Determination concludes that the Enhancement Project “primarily benefits Eastside Cook Inlet set-net commercial fishermen.” In light of this primary effect, any incidental benefit to sport fishermen or others is not controlling. The incidental benefit that the program may provide to recreational and sport fishermen is subordinate to the primary benefit conferred on the. commercial fishing industry. • In light of the unmistakable primary purpose and 'effect' of the Enhancement Project, we reject arguments advanced by the USFWS that were credited by the district court. The district court reasoned in part that the CIAA is itself a nonprofit organization. But the non-profit status of the CIAA cannot be controlling because its non-profit activities are funded by the fishing industry and are aimed at providing benefits to that industry. The CIAA’s continued funding and operation is dependent upon the revenues of commercial fishermen, and we have previously recognized that even non-profit entities may engage in commercial activity. Dedication and Everlasting Love to Animals v. Humane Soc., 50 F.3d 710, 713(9th Cir.1995) (“A nonprofit organization ... may engage in commercial activity.”)- In addition, the district court relied on the involvement of the State of Alaska, which previously had run the stocking project to research the viability of artificially enhancing salmon runs. But prior management activity and present regulatory control by the State of Alaska is irrelevant to assessing the primary purpose and effect of the current Enhancement Project. When the State had direct control of operations, the project’s primary purpose was research-oriented. As set forth in the 1985 Memorandum of Understanding, the project was aimed at researching the viability of techniques to enhance the salmon run and evaluating the side effects of stocking, including its effect on lake-reared fish, escapement levels, and the incidence of disease in the salmon population. But now the project, as run by the CIAA, is aimed at enhancing salmon runs to increase the catch of commercial fishermen. The purpose of the project has changed from research on techniques to practical operations to swell the catch of fish and the commerce thereon. That the State maintains regulatory control over the Enhancement Project, by its permitting authority over the CIAA’s hatchery operations, see Alaska Stat. §§ 16.10.380, 16.10.400(a) (2003), does not matter. The State regulates an array of commercial enterprises, from cruise ship operation to oil exploration. See, e.g., Alaska Stat. §§ 31.05.090, 46.03.460 et seq. (2003). That an industry or activity is regulated does not mean that it is no longer a commercial activity. Furthermore, the essential nature of the Enhancement Project is not changed merely because the commercial benefit derived from the Enhancement Project is conferred when fishermen make their salmon catch outside the bounds of the Kenai Wilderness. It is correct that what the Wilderness Act bars is the operation of a “commercial enterprise ... within any wilderness area.” 16 U.S.C. § 1133(c) (emphasis added). But it is not disputed that substantial and essential parts of the Enhancement Project’s operation, the collection of eggs taken to a hatchery and the stocking of six million fry returned to Bear Creek, occur within the Kenai Wilderness. Implicit in the justifications urged for the project is the premise that we may recognize that the benign purposes of the project should be permitted to continue because the Wilderness Act resulted from a “compromise” of the legislature. But regardless of any tradeoffs considered by Congress in enacting the Wilderness Act, we interpret and apply the language chosen by Congress, for that language was chosen in order to incorporate and effectuate those tradeoffs. The plain language of the Wilderness Act states that there shall be “no commercial enterprise” within designated wilderness. 16 U.S.C. § 1133(c) (emphasis added). This mandatory language does not provide exception to the prohibition on commercial enterprise within wilderness if aimed at achieving a benign goal for commerce with modest impact on wilderness. That compromises may have been made in the legislative process does not alter an analysis of Congress’s words of proscription based on traditional canons of statutory construction. See American Ass’n of Retired Persons v. E.E.O.C., 823 F.2d 600, 604 (D.C.Cir.1987) (“[Statutes are records of legislative compromise, and the best guide to the purposes of a statute is the language of the statute itself.”). We must abide by Congress’s prohibition of commercial enterprise in wilderness and may not defer to the contrary interpretation argued by the USFWS. In light of the clear statutory mandate, the Wilderness Act requires that the lands and waters duly designated as wilderness must be left untouched, untrammeled, and unaltered by commerce. By contrast, the Enhancement Project is a commercial enterprise within the boundaries of a designated wilderness and violates the Wilderness Act. Ill As an alternative holding in support of our decision, even if we were to assume that the Wilderness Act’s prohibition on commercial enterprise within the wilderness is ambiguous, we would reach the same conclusion that the Enhancement Project offends the Wilderness Act. Assuming ambiguity in the scope of the prohibition, under Mead agency action is not entitled to heightened Chevron deference unless the agency can demonstrate that it has the general power to “make rules carrying the force of law” and that the challenged action was taken “in the exercise of that authority.” Mead, 533 U.S. at 226-27, 121 S.Ct. 2164. Administrative interpretations not meeting these standards are entitled not to deference, but to a lesser “respect” based on the persuasiveness of the agency decision. Id. at 228, 121 S.Ct. 2164; Skidmore, 323 U.S. at 139-40, 65 S.Ct. 161. Applying Mead, we conclude that this case involves only an agency’s application of law in a particular permitting context, and not an interpretation of a statute that will have the force of law generally for others in similar circumstances. The issuance of a permit by a federal agency cannot in this case be characterized as the exercise of a congressionally delegated legislative function. Mead, 533 U.S. at 229-30, 121 S.Ct. 2164. Even when considered together, the Special Use Permit and the underlying documents supporting it do not “bespeak the legislative type of activity that would naturally bind more than the parties to the ruling.” Id. at 232,121 S.Ct. 2164. Pursuant to the NEPA process, the USFWS issued several documents before granting the CIAA a Refuge Special Use Permit for the Enhancement Project. These documents included the EA, a Mitigated Finding of No Significant Impact, a Wilderness Act Consistency Review, and a Compatibility Determination. Only the Consistency Review and Compatibility Determination contain legal analysis of the Wilderness Act. Both the Consistency Review and the Compatibility Determination speak in terms specific to the Enhancement Project, and do not address general principles of law. The analysis that these documents give to the permissibility of the Enhancement Project relies on an opinion letter prepared by the Department of the Interior’s Regional Solicitor’s office. Entitled “Kenai National Wildlife Refuge; Tustumena Lake Enhancement Project,” this opinion letter speaks only to the permissibility of the CIAA-operated Enhancement Project in Tustumena Lake, and does not attempt to draw broader conclusions regarding the permissibility of this type of enterprise within wilderness. Nothing in the review documents or the Solicitor’s opinion would bind the USFWS to permit a similar activity in another wilderness. We recently stated in the context of the National Marine Fisheries Service’s interpretation of the High Seas Compliance Act, 16 U.S.C. § 5501-5509, that “[¡Interpretations such as those in opinion letters ... do not warrant Chevron-style deference.” Turtle Island Restoration Network v. Nat’l Marine Fisheries Service, 340 F.3d 969, 975 n. 10 (9th Cir.2003) (quoting Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000)). The Solicitor’s opinion relied upon by the USFWS in issuing the Special Use Permit to CIAA was not a document intended to have the general force of law. See generally Robert A. Anthony, Which Agency Interpretations Should Bind Citizens and the Courts?, 7 Yale J. on Reg. 1, 58 (1990) (surveying the landscape of deference to agency action and concluding that “[¡Interpretations presented in [opinion letters] do[] not have the force of law”). Neither can the project-specific documents that rely upon this opinion be considered to carry the general force of law. Under Mead and Skidmore, the weight that we are to give an administrative interpretation not intended by an agency to carry the general force of law is a function of that interpretation’s thoroughness, rational validity, and consistency with prior and subsequent pronouncements. Skidmore, 323 U.S. at 140, 65 S.Ct. 161. Mead adds as other relevant factors the “logie[ ] and expertness” of an agency decision, the care used in reaching the decision, as well as the formality of the process used. Mead, 533 U.S. at 228, 235, 121 S.Ct. 2164. Even if we assume the Wilderness Act’s prohibition on commercial enterprise to be ambiguous, the USFWS’s permitting of the Enhancement Project “goes beyond the limits of what is ambiguous and contradicts what in our view is quite clear.” Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 481, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001). Whatever else might be done permissibly within wilderness in extraordinary circumstances for purposes relating to conservation or preservation of the wilderness, we conclude that it is “quite clear” that conduct with the primary purpose and effect to aid commercial enterprise cannot be countenanced. Moreover, the USFWS’s decision-making process shows little attention to the precise question of whether the Enhancement Project is a commercial enterprise. Although the USFWS argues that the Regional Solicitor was specifically asked if the project was a precluded commercial enterprise, the issue of commercial enterprise was not addressed explicitly by the Solicitor’s opinion upon which the USFWS relied; the Solicitor’s opinion cannot be considered persuasive on interpretation of a statutory term that it does not discuss with specificity. And the record before the agency in our view supports a conclusion squarely contrary to that reached by the USFWS. The final USFWS decision that the Enhancement Project is not a commercial enterprise contains little analysis of the commercial enterprise issue. Relying on the Regional Solicitor’s opinion, the Wilderness Act Consistency Review devotes only a few sentences to the question of whether the Enhancement Project is a commercial enterprise, concluding that close state regulation of the project obviates the commercial enterprise issue. We have concluded to the contrary that state regulation does not preclude characterizing as a commercial enterprise an activity with the primary purpose and effect to benefit commerce. The USFWS analysis on consistency was not thorough, see Skid-more, 323 U.S. at 140, 65 S.Ct. 161, and we are not impressed by “persuasiveness of the agency’s position.” See Mead, 533 U.S. at 228, 121 S.Ct. 2164. We do not consider the USFWS decision to have significant “rational validity,” Skidmore, 323 U.S. at 140, 65 S.Ct. 161, or to reflect the product of specialized agency expertise. Mead, 533 U.S. at 228, 235, 121 S.Ct. 2164. Having considered the Mead and Skid-more factors, we are not persuaded by the agency’s analysis. We hold, alternatively, that even if the term “commercial enterprise” within designated wilderness is ambiguous, the Enhancement Project under the total circumstances is a prohibited commercial enterprise within wilderness. IV Plaintiffs were entitled to prevail on their motion for summary judgment establishing that the USFWS’s permit for the commercial enhancement program violated the Wilderness Act. Plaintiffs were entitled to gain a final judgment setting aside the USFWS’s permit. Plaintiffs were entitled to gain a final judgment enjoining operation of the Tustumena Lake Sockeye Salmon Enhancement Project. REVERSED and REMANDED for further proceedings not inconsistent with this opinion. Costs shall be borne by Defendant. . The material facts essential to determine this case are undisputed by the parties. . For views of conservationists who focused on the unspoiled areas of the western United States, see the selected bibliography in Peter Wild, Pioneer Conservationists of Western America 209-36 (Mountain Press Publishing Co.1979). . Congress also may withdraw lands from designated wilderness after a similar process. See 16 U.S.C. 1132(e). . The Crooked Creek Hatchery closed in 1996, and hatchery operations related to the Enhancement Project were transferred to the Trail Lakes Hatchery. . We review de novo a district court’s order granting or denying summary judgment. United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.2003). . Although Mead did not state with specificity what types of agency powers are indicative of authority “generally to make rules carrying the force of law,” the Court provided this guidance: "Delegation of such authority may be shown in a variety of ways, as by an agency’s power to engage in adjudication or notice-and-comment rulemaking, or by some other indication of a comparable congressional intent.” 533 U.S. at 227, 121 S.Ct. 2164. . In describing the present Enhancement Project, the Kenai Refuge Manager has stated: "The activity is no longer experimented in nature, nor is restoration of fish stocks an objective. It is strictly an enhancement effort to increase the number of sockeye salmon available to the commercial fishery.” This declaration occurs as part of a broader statement about the primary purpose of the project to enhance the commercial catch of sockeye salmon. See infra 1065. . In footnote 18 we decline to reach the issues of whether the challenged project alters "natural conditions” that are part of the "wilderness character” to be preserved by the Wilderness Act and whether it is “compatible” with purposes of the Kenai Refuge. .The USFWS contends that Lyng is not persuasive authority because the district court later found a scaled-back version of the eradication program permissible under the Wilderness Act. Sierra Club v. Lyng, 663 F.Supp. 556, 557, 560-61 (D.D.C.1987). However, this subsequent holding does not undercut the stress the Lyng court placed on consideration of purpose and effect. The district court only later approved the eradication program upon the Secretary of Agriculture's showing that the scaled-back program’s primary purpose and- effect was to protect wilderness resources, not commercial interests, id. at 558, and that the program was "necessary to effectively control the threatened outside harm” to designated wilderness. Id. at 559. Thus the second Lyng decision equally supports the important role of purpose and effect in our analysis of the Enhancement Project. . USFWS’s own definition of “commercial enhancement,” as set forth in the Kenai Refuge Fishery Management Plan, confirms this conclusion. According to this definition, although commercial enhancement "is primarily directed toward maintaining commercial fisheries,” "[s]ome sport and subsistence harvest of the enhanced fish may occur.” . The district court did not give the same weight to considerations of purpose and effect as we do here. That is perhaps because, as above indicated, our prior precedent has not given guidance on this issue. ■ . The CIAA itself, to some extent, engages in commercial activity through its cost-recovery sale of the excess salmon produced each year by the Enhancement Project, from which it realizes nearly one million dollars in annual revenue. See Goldfarb v. Virginia State Bar, 421 U.S. 773, 787-88, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975) ("[T]he exchange of ... a service for money is 'commerce’ in the most common usage of that word.”). We need not stress this factor, for in light of the primary purpose and effect to benefit the commercial activities of fishermen, our conclusion that a commercial enterprise prohibited within wilderness has been shown would remain the same even if the CIAA discarded without sale all fry supplementary to the stocking program. . If we were to accept the argument that the Enhancement Project, despite its commercial aims, is exempt from the Wilderness Act because the project’s commercial benefit is conferred outside the wilderness, we would likely soon face arguments that other commercial operations, more intrusive on the wilderness, might be sustained under the Wilderness Act, if transactions constituting commerce occur outside of the wilderness area's bounds. The weakness in this line of argument is obvious if we consider that a logging operation within the wilderness could not sensibly be urged to be permissible, even though the trees harvested were sold outside of the wilderness area. . The Regional Solicitor's opinion on which USFWS relied urges that "[the Wilderness Act] is a legislative compromise that by no means reflects pure or absolute preservation-ism.” . In answering the question of whether fishery enhancement is an appropriate activity in the designated wilderness, the Consistency Review quotes an opinion of the Department of the Interior Regional Solicitor's office concluding that the "[USFWS] has administrative discretion sufficient to grant [CIAA] a special use permit for operation of a compatible enhancement project in the Kenai Wilderness.” The Consistency Review relies on the same Solicitor's opinion, and concludes that "the proposed action is consistent with the legal requirements of the Wilderness Act and AN-ILCA.” These conclusions are inconsistent with a view that the USFWS intended the analyses in these documents to have legal force beyond determination of the permissibility of this Enhancement Project. . There has been judicial suggestion that Solicitor's opinions specifically are not entitled to Chevron deference. Manning v. United States, 146 F.3d 808, 814 n. 4 (10th Cir.1998) (addressing a Department of the Interior Solicitor’s opinion regarding the Multiple Use Mining Act of 1955). In terms of the principles set forth in Chevron and Mead, we likewise conclude that Solicitor's opinions, helpful as they may be to agencies which study them, cannot properly be viewed as an administrative agency interpretation of statute that has the force of law. Such opinions, which normally are the product of individual lawyers advising their client agencies, and which do not in their formulation involve procedural protections comparable to an agency's rulemaking procedures, do not invoke Chevron deference. . On the day before the USFWS's issuance of the Special Use Permit, the Regional Solicitor issued a second letter giving further consideration to the issues addressed in the initial opinion letter. This second letter concludes that § 1315(b) of ANILCA does not prohibit fishery enhancement projects in Alaskan refuge wilderness areas. ANILCA § 1315(b) permits fishery enhancement "[i]n accordance with the goal of restoring and maintaining fish production in the State of Alaska.” Id. However, this letter gives no express consideration to the Wilderness Act’s specific prohibition on commercial enterprise within a designated wilderness. As such it is not helpful or persuasive in interpreting the Wilderness Act. . Plaintiffs also assert that the Enhancement Project violates the Wilderness Act’s requirement that any action taken within a federally-designated wilderness area preserve the "natural conditions” that are a part of the "wilderness character” of such an area, 16 U.S.C. §§ 1131, 1133, and also that the project violates the Refuge Act's mandate that special use permits be issued only after a determination that "such uses are compatible with the major purposes for which such areas were established.” 16 U.S.C. § 668dd(d)(l)(A). Because we have determined that the district court erred in granting summary judgment to the USFWS, because the Enhancement Project is a prohibited commercial enterprise, we need not and do not consider these additional claims. . Plaintiff Wilderness Society has requested an award of reasonable attorney’s fees under the Equal Access to Justice Act. We do not reach this issue. Plaintiffs may file a motion seeking such an award of fees, to be addressed after defendant has had an opportunity to be heard.

Isle Royale Boaters Ass'n v. Norton

MOORE, delivered the opinion of the court, in which FORESTER, D.J., joined. BATCHELDER, J., joined in J. MOORE’s opinion as to Parts I and II and in the judgment. OPINION MOORE, Circuit Judge. This case involves a challenge to the General Management Plan that the National Park Service issued for Isle Royale National Park on August 17, 1998. The plaintiffs, the Isle Royale Boaters Association and a number of individual boaters and other visitors to Isle Royale, argue that by removing certain docks and altering trail access and shelter facilities at other docks, the Park Service’s 1998 General Management Plan will significantly limit the boaters’ access to the island and contravene the intent of Congress when it made Isle Royale a National Wilderness Area in 1976. We conclude that the addition, removal, and relocation of docks proposed in the General Management Plan is within the discretion granted by the Wilderness Act and the National Park Service’s Organic Act. Thus we AFFIRM the district court’s decision granting summary judgment to the defendants. I. BACKGROUND Isle Royale National Park consists of a series of islands in the northern reaches of Lake Superior. The main island is about forty-five miles long and nine miles wide; it is surrounded by about four hundred smaller islands. It has been a national park since 1981, and it was designated as a national wilderness area in 1976. The park’s approximately 17,000 visitors each year arrive by ferry, seaplane, and private boat to hike, camp, and enjoy the park’s waters. The park has 165 miles of trails, many campgrounds, and one overnight lodge. Although the park is closed to visitors from October through mid-April, its year-round residents include moose, timber wolves, snowshoe hares, and beavers, as well as about seventy rare plant species. In 1995, the National Park Service formally began the process that would ultimately lead to a General Management Plan (GMP) to take the place of the master plan that had governed the park since 1963. The GMP would serve to guide “future use of resources and facilities, to clarify research and resource management needs and priorities, and to address changing levels of park visitation and use.” Joint Appendix (“J.A.”) at 375 (GMP at 4). General management plans usually provide guidance over a fifteen- to twenty-year period. Following a series of public forums and newsletters, a draft of the GMP was distributed in March of 1998. After a further period of public comment, the Park Service issued the final version on August 17,1998. . Among other concerns, the GMP sought to address visitors’ complaints regarding noise levels within the park. The GMP noted that although Isle Royale receives fewer visitors than many national parks, it has a high number of overnight visitors, and “[w]ith Isle Royale’s density of back-country use, differing preferences and expectations are especially evident.” J.A. at 376 (GMP at 5). “Some visitors complain that their wilderness experiences are being compromised by visual intrusions and noise from park .developments,- jets and other aircraft, boats, and the behavior and activities of other visitors, such as having loud parties and playing stereos.” J.A. at 376 (GMP at 5). Because Isle Royale’s designation as a wilderness area “carries with it certain expectations for visitors, such as solitude and quiet,” J.A. at 376 (GMP at 5), the GMP aimed to “separate motorized and nonmotorized uses in some areas,” J.A. at 401 (GMP at 34). As part of an effort to separate nonmo-torized uses of the park from motorized uses of the park, the final GMP included a number of changes that would affect motorized boat users’ access to the park. Prior to the GMP, the park had twenty docks on Lake Superior. Under the GMP, the park would eliminate some docks, relocate others, and build some new docks, so that the park would ultimately offer twenty-two docks. However, although the changes would result in an aggregate increase in the number of docks, and although boaters would still be able to access all areas of the park, albeit with perhaps a longer hike from a relocated dock, the changes would in some ways limit boaters’ access to shelters and trails. Under the GMP, the Park Service would eliminate the docks at Three Mile, which gave boaters access to eight shelters, at Duncan Bay, which offered two shelters, and at Siskiwit Bay, which gave boaters direct access to the island’s trail system. The dock at McCargoe Cove, which offered six shelters and was directly on the trail system, would be moved approximately one mile toward the mouth of the cove, so that boaters could reach the main trail system and the shelters only by a one-mile “spur” trail. Similarly, the GMP calls for the Park Service to remove access to the main trail system from the dock at Chippewa Harbor by eliminating the two-mile Indian Portage Trail that connected them. Boaters could still reach the main trail system via other docks. The three docks that the GMP would eliminate entirely would be replaced with five new docks. However, unlike the three previous docks, which were all located on the main island, four of the five new docks would be on surrounding islands with no access to the main island. These four docks would be at Johns Island, Washington Island, Wright Island, and Crystal Cove; of the four, none of the sites would have shelters immediately, but historical structures at Washington Island and Crystal Cove would be adapted for such use. The fifth new dock would be at Fisherman’s Home. The Fisherman’s Home dock would offer no access to the main trail system, but the site has historical structures that would be considered for conversion to shelters. Nonshelter camping would be available at all five sites. Finally, the GMP calls for the Park Service to replace a dock at Hay Bay. The GMP does not call for rebuilding the dock at Huginnin Cove, which was damaged by-weather in the mid-1980s. The Isle Royale Boaters Association (IRBA) and five individual plaintiffs filed suit in federal district court on August 18, 1999. According to their First Amended Complaint, the plaintiffs include an association representing more than six hundred members who regularly visit Isle Royale and boat in its waters, four individuals who frequently visit Isle Royale in their boats, and one individual who regularly visits the island to canoe, hike, and fish. The plaintiffs alleged that the Park Service’s GMP and the process undertaken to adopt it violated the Wilderness Act; Public Law 94-567, which is the act designating Isle Royale as a wilderness area and which the parties refer to as the Isle Royale Wilderness Act; the 1916 Organic Act that established the National Park Service; the National Environmental Policy Act; and the Administrative Procedure Act. On June 6, 2001, the district court denied the plaintiffs’ motion for summary judgment and granted the defendants’ motion for summary judgment. The Park Service’s proposed plan was not arbitrary or capricious, the district court ruled, because the Wilderness Act gave the Secretary the authority to regulate boat use in wilderness areas such as Isle Royale. Moreover, the court reasoned, the GMP would result in a net increase of docks, raising the total from twenty to twenty-two, and would still permit those using motorboats to reach the park’s shelters and trails by hiking, kayaking, and canoeing, just as other island visitors did. Because the Isle Royale Wilderness Act “contemplates the continued maintenance of docks at the Park,” but not “the continued maintenance and existence to perpetuity of every dock currently at the Park,” J.A. at 742, and because the Park Service’s decisions regarding the docks were not arbitrary or capricious under the Wilderness Act and the Isle Royale Wilderness Act, the court would not intervene. The court also rejected the plaintiffs’ Organic Act and National Environmental Policy Act arguments, as well as the plaintiffs’ post-complaint arguments that the GMP violated the Rehabilitation Act and the ADA, none of which allegations the plaintiffs press on appeal. The plaintiffs timely appealed, and we have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s decision awarding summary judgment to the defendants and apply the standard of review appropriate to a review of the agency action in question. Community First Bank v. Nat’l Credit Union Admin., 41 F.3d 1050, 1054 (6th Cir.1994). Under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we first determine “whether Congress has directly spoken to the precise question at issue,” id. at 842, 104 S.Ct. 2778; if it has not, we ask “whether the agency’s answer is based on a permissible construction of the statute,” id. at 843, 104 S.Ct. 2778. Section 706(2)(A) of the Administrative Procedure Act permits us to set aside the agency’s determination only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” 5 U.S.C. § 706(2)(A); see also Spitzer Great Lakes Ltd. v. United States Envtl. Prot. Agency, 173 F.3d 412, 414 (6th Cir.1999). II. THE STATUTES Given the obligations that the Wilderness Act and the Organic Act impose on the agencies charged with administering wilderness areas and national parks, the National Park Service’s decision to separate uses on Isle Royale by removing, adding, and relocating docks is consistent with Congress’s instructions. Although the plaintiffs do not explicitly address the Organic Act in their appellate brief, the plaintiffs challenge the removal of three docks that are in areas designated only as national parkland, not as wilderness area; accordingly, we review the effects of the GMP on the docks at Siskiwit Bay, McCar-goe Cove, and Three Mile for arbitrariness and capriciousness with respect to the Organic Act. We review the GMP’s effects on the other docks in light of the Wilderness Act and the Isle Royale Wilderness Act. In each case, we ask whether the GMP, and specifically the removal, addition, and relocation of docks, is inconsistent with the clear intent of Congress as expressed in the relevant act. See Southern Utah Wilderness Alliance v. Dabney, 222 F.3d 819, 826 (10th Cir.2000). A. National Park Isle Royale has been a national park since 1931. As a national park, its purpose is “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” 16 U.S.C. § 1. Prior to 1976, when Congress designated most of Isle Royale a wilderness area, the Secretary of the Interior had the power to remove docks or alter boaters’ access to the park as the Secretary saw fit. This power came pursuant to 16 U.S.C. § la-2(h), which authorizes the Secretary to “[promulgate and enforce regulations concerning boating and other activities on or relating to waters located within areas of the National Park System.” The Organic Act makes no reference to the placement of docks or the access that docks must provide to national parkland. Accordingly, the National Park Service has broad discretion to determine where docks are located on Isle Royale and, indeed, whether to permit docks at all; although the statute requires the Secretary to provide for the enjoyment of national park-lands, 16 U.S.C. § 1, the statute does not require the Secretary to provide access via docks or boats. In the GMP,- the National Park Service proposed eliminating the Siskiwit Bay dock, which had remained intact only because it was protected by an artificial breakwall that disrupted natural currents; moving the McCargoe Cove dock closer to the mouth of the cove in order to reduce noise on the main trail system; and removing the Three Mile dock in order to “ease use pressure, separate uses, and eliminate the need to maintain a public dock in this very exposed location.” J.A. at 404 (GMP at 37). These goals, and the GMP’s plan to achieve them with its changes to the three docks, are well within the policies identified in the Organic Act. Removing docks helps to conserve scenery, and moving docks to reduce noise on the trails facilitates the enjoyment of the scenery, natural objects, and wild life that the island offers. This is consistent with Congress’s requirements. See 16 U.S.C. § 1. This case is somewhat analogous to that faced by the Ninth Circuit in Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445 (9th Cir.1996). There, a group of bicycle enthusiasts challenged a plan adopted for the Golden Gate National Recreation Area as impermissibly restricting the bikers’ access to the national park. The court held that the plan, which left a number of trails closed to bikes, was well within the discretion granted by the Organic Act and the GGNRA Act, which had designated the area a national park. “[T]he GGNRA Act in no way mandates that any particular type of recreation be given primacy over other types. There is simply nothing in the GGNRA Act or the NPS Organic Act requiring the NPS to give bicyclists unfettered reign of the park without regard to the recreational interests of those whose chosen mode of recreation is inconsistent with such unfettered reign.” Id. at 1461. See also Mausolf v. Babbitt, 125 F.3d 661, 668-70 (8th Cir.1997) (finding that plan to close certain trails to snowmobiles furthered park objectives of “preservation and protection of wildlife”), cert. denied, 524 U.S. 951, 118 S.Ct. 2366, 141 L.Ed.2d 735 (1998). Similarly, here, the National Park Service has determined that motorboat users’ access must be altered — although arguably not even reduced — -in order to separate uses and protect the natural experience, goals perfectly consistent with the Organic Act. Insofar as the GMP affects docks on national parkland, it is neither arbitrary nor capricious. B. Wilderness Area If the Park Service has the power to limit access to the island via docks in areas designated only as national park land, the Park Service a fortiori has the power to limit access to the island via docks in wilderness areas. Congress’s designation in 1976 of all but a few portions of Isle Royale as wilderness area, to “be administered by the Secretary of the Interior in accordance with the applicable provisions of the Wilderness Act,” Act of October 20, 1976, Pub.L. No. 94-567, § 1(f), 90 Stat. 2692 (“Isle Royale Wilderness Act”), did not lessen the National Park Service’s obligation to preserve the island’s character. 16 U.S.C. § 1133(a)(3) (“[T]he designation of any ... unit of the national park system as a wilderness area pursuant to this chapter shall in no manner lower the standards evolved for the use and preservation of such park.”). Rather, because “[g]reater protections apply to wilderness areas than to ordinary park lands,” Alaska Wildlife Alliance v. Jensen, 108 F.3d 1065, 1069 (9th Cir.1997), the designation increased the Park Service’s obligation. There is no question that the Wilderness Act empowers the Park Service to remove or relocate docks in order to “separate motorized and nonmotorized uses,” J.A. at 401 (GMP at 34). As a wilderness area, the park is to be administered “for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness.” 16 U.S.C. § 1131(a). The Park Service must ensure that “the earth and its community of life are untrammeled by man” and that the land “retain[s] its primeval character.” 16 U.S.C. § 1131(c). The Secretary thus has broad discretion to preserve the land and its character. Although the Wilderness Act does not specifically mention docks, it does explicitly ban motorboats, structures, and installations, 16 U.S.C. § 1133(c), unless the Secretary decides to permit a pre-existing motorboat use to continue, 16 U.S.C. § 1133(d)(1) (stating that when motorboat use was already established, the use “may be permitted to continue” subject to restrictions) (emphasis added). We cannot believe that Congress would ban motorboats but require docks without giving some indication that it was doing so. As the removal, relocation, and addition of docks furthers the GMP’s goal of separating uses, and thus furthers the Wilderness Act’s goal of providing a “contrast” to “those areas where man and his own works dominate the landscape,” 16 U.S.C. § 1131(c), we conclude that the GMP is neither arbitrary nor capricious in its effects on the docks in wilderness areas. III. LEGISLATIVE HISTORY AND AGENCY STATEMENTS When a statute’s text is unambiguous, there is ordinarily no need to review its legislative history. See Audette v. Sullivan, 19 F.3d 254, 256 (6th Cir.1994). However, there are those “rare cases in which the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters,” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989); accord Immigration and Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 432 n. 12, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987), and IRBA argues that materials not appearing in the text of the statute limit the Park Service’s power to move or remove the docks on Isle Royale. Specifically, IRBA argues that Congress intended for the Park Service to preserve boaters’ access as it existed when Congress designated Isle Royale a wilderness area in 1976. According to IRBA, legislative history shows that in enacting the Isle Royale Wilderness Act, Congress expressed its intention that the designation not enable the Park Service to impose the kinds of significant limitations on boater access that the GMP proposes. IRBA relies on statements by individual legislators, a committee report, and correspondence from the Park Service. First, IRBA points to legislators’ statements during consideration of the bill that designated Isle Royale as a wilderness area. Testifying before the Senate on the importance of protecting the docks, Congressman Philip E. Ruppe, who sponsored the Isle Royale Wilderness Act in the House, expressed his “strong view that the continued maintenance of these facilities is absolutely essential to the continued ease of access and enjoyment the public now associates with Isle Royale National Park.” Wilderness Additions — National Park System: Hearing on S. 1085 and S. 1675 Before the Senate Subcomm. on Parks and Recreation of the Comm, on the Interior and Insular Affairs, 94th Cong. 118 (1976) (statement of Rep. Philip E. Ruppe) (hereinafter “Hearing”). Senator J. Bennett Johnston, who presided over the hearing, responded by agreeing that “everyone agrees that they ought to continue using the boat docks.” Id. at 120. IRBA argues that this colloquy expressed Congress’s intention that the docks remain where they were in 1976 — as made clear by Congressman Ruppe’s further suggestion that docks be maintained to protect the enjoyment the public “now associates” with the park, and that boaters be able to use the park “in the same fashion as they have used it heretofore.” Id. at 119. Although acknowledging that the Park Service could move the docks a couple of hundred yards, IRBA suggests that the legislators’ comments make clear that the Park Service could neither remove docks nor move docks in such a way as to alter boaters’ access to the island’s offerings. This case presents a clear example of why Congress’s intent is better derived “from the words of the statute itself than from a patchwork record of statements inserted by individual legislators and proposals that may never have been adopted by a committee, much less an entire legislative body.” Sigmon Coal Co. v. Apfel, 226 F.3d 291, 304-05 (4th Cir.2000), aff'd, 534 U.S. 438, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). We are wary of relying on individual legislators’ statements, because individual statements are often contradicted or at least undermined by other statements in the legislative record. The statements of Congressman Ruppe and Senator Johnston that IRBA cites suggest at least interest in maintaining boaters’ access to the island, if not the all-out prohibition on moving or removing docks that IRBA suggests. However, other statements during the same hearing suggest a similar interest in allowing the Park Service the discretion to manage the docks in accordance with the Wilderness Act’s usual provisions. Senator Clifford P. Hansen, for example, questioned the wisdom of “tying the hands of the Park Service,” Hearing at 121, and Senator Johnston himself noted that conservation groups opposed including in the bill any restrictions on the Park Service’s usual discretion, Hearing at 120. Although statutory language can sometimes be ambiguous, legislators’ statements are almost always cacophonous, and we decline to rely on them here. Second, IRBA points to language in the report of the Senate Committee on Interi- or and Insular Affairs that accompanied the Isle Royale Wilderness Act. The committee report, to be sure, indicates that the continued maintenance of the boat docks was a concern. After noting that the Senate had struck language from the House version of the bill that would have required construction and maintenance of boat docks “as long as their purpose is for safety of visitors and the protection of the wilderness resource,” the committee report explained the change. This technical decision by the Committee should have no effect on the continuance of those activities pursuant to the appropriate provisions of the Wilderness Act. The Committee understands that no significant expansion of boat docks numbers is anticipated, but that continued maintenance of these facilities is essential to the continued ease of access as well as the health and safety of the visitors. S.Rep. No. 94-1357, at 5 (1976). Even if this passage reflects the will of Congress, which is questionable, see Shannon v. United States, 512 U.S. 573, 583, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994) (expressing an inability to find “any case ... in which we have given authoritative weight to a single passage of legislative history that is in no way anchored in the text of the statute” and cautioning against reliance on committee report’s endorsement of a view that is not linked to any portion of the statute), it does not undermine the discretion that the Wilderness Act’s text grants. Taken in full context, the Interior and Insular Affairs Committee’s preference for the “continued maintenance” of the docks is subject “to the appropriate provisions of the Wilderness Act,” S.Rep. No. 94-1357, at 5. As discussed in Part II, supra, docks may be removed or relocated in order that the wilderness areas of Isle Royale be administered “for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness.” 16 U.S.C. § 1131(a). Finally, IRBA points to previous Park Service statements in which the Park Service allegedly claimed that passage of the Isle Royale Wilderness Act did, indeed, require the Park Service to maintain the docks as they existed. IRBA pointed to letters that Park Service officials had written over the years in response to park visitors’ complaints and requests that the Park Service remove the docks. In several letters, the Park Service responded by stating that “Congress also specifically mandated that existing docks extending into (the non-wilderness of) Lake Superior from wilderness campsites ... remain and be maintained by the National Park Service.” E.g., J.A. at 227, 231, 284. However, even if these responses to visitor complaints about the docks’ users constituted final rulings of the agency, which they do not, “[t]he Secretary of the Interior has the inherent authority to reconsider an earlier agency decision,” Belville Mining Co. v. United States, 999 F.2d 989, 997 (6th Cir.1993). Thus this is not the “rare case[ ] in which the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.” Ron Pair Enters., Inc., 489 U.S. at 242, 109 S.Ct. 1026. The legislative history indicates that during consideration of the Isle Royale Wilderness Act, some members of Congress sought explicit statutory protection for boaters’ access to Isle Royale. Some members of Congress opposed such statutory protection. A compromise was reached, and although the final bill contained no mention of the docks, the committee report mentioned the docks’ importance and stated that the Wilderness Act’s usual provisions would apply. It is on those provisions, and those of the Organic Act, that we rely. See 16 U.S.C. § 3 (recognizing agency’s power to administer national parks as necessary to effectuate purposes of national park system); 16 U.S.C. § 1131(b) (recognizing agency’s power to regulate wilderness area as the agency had been empowered prior to the designation as a wilderness area). IY. CONCLUSION Because the addition, removal, and relocation of docks that Isle Royale’s General Management Plan proposes will further the statutorily-supported goal of separating motorized and nonmotorized uses and is neither arbitrary nor capricious in light of the governing statutes, we AFFIRM the district court’s decision granting summary judgment to the defendants. . IRBA suggests that section 1133(d)(1) is mandatory, and that the Secretary is required to permit pre-existing motorboat uses to continue in wilderness areas. Although IRBA is correct that "may” is not necessarily permissive, Cortez Byrd Chips, Inc. v. Bill Harbert Constr. Co., 529 U.S. 193, 198-99, 120 S.Ct. 1331, 146 L.Ed.2d 171 (2000), we assume that "may” is using its "common-sense” permissive definition unless the context of the statute suggests otherwise, United States v. Rodgers, 461 U.S. 677, 706-07, 103 S.Ct. 2132, 76 L.Ed.2d 236 (1983). Here, where the statute explicitly seeks to ensure that "the earth and its community of life are untrammeled by man,” 16 U.S.C. § 1131(c), and adopts, subject to existing private rights, a general ban on motorboat use, 16 U.S.C. § 1133(c), we cannot presume that the National Park Service is required to permit motorboats in wilderness areas. . See Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) ("[I]nterpretations contained in formats such as opinion letters are entitled to respect ... but only to the extent that those interpretations have the power to persuade”) (quotations and citations omitted); Pearce v. United States, 261 F.3d 643, 648-49 (6th Cir.2001) (noting that internal operating manual did not constitute an enforceable regulation, which is different from “an interpretative rule, general statement of policy, or rule of agency organization, procedure, or practice”).

Montana Wilderness Ass'n v. United States Forest Service

OPINION TROTT, Circuit Judge: The United States Forest Service (“Forest Service”) and Intervenors, Blue Ribbon Coalition, Inc., et al, appeal the district court’s order (1) determining that it had subject matter jurisdiction over this action under the Administrative Procedures Act (“APA”), and (2) granting the Montana Wilderness Association (“Wilderness Association”) summary judgment. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand for further proceedings. BACKGROUND In 1977, Congress passed the Montana Wilderness Study Act (“the Act”) to “provide for the study of certain lands to determine their suitability for designation as wilderness.” Pub.L. No. 95-150, 91 Stat. 1243 (1977). The Act mandates that the Secretary of Agriculture “shall, until Congress determines otherwise,” administer specific Wilderness Study Areas (“Study Areas”) “to maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System” (‘Wilderness System”). Id. (emphasis added). The Secretary of Agriculture administers the areas at issue in this case through the Forest Service. Congress intended that, within seven years after the Act was passed, the President would make a recommendation to Congress on whether the Study Areas should be included in the Wilderness System. Twenty-five years later, no final decision has been made to include the Study Areas at issue in this case in the Wilderness System (or to exclude them from the system). Consequently, the Forest Service has been managing the Study Areas under Congress’ interim arrangement for more years than intended. The Wilderness Association claims the Forest Service violated the Act by failing to maintain seven Study Areas’ wilderness character and potential for wilderness designation when it “allow[ed], encourag[ed], and/or fail[ed] to act to prevent motorized vehicle use of [the Study Areas] beyond what existed in 1977.” Specifically, the Wilderness Association’s complaint alleges in Count I that the Forest Service’s “actions and inactions” increased the type and amount of motorized activity in all Study Areas, resulting in diminished wilderness character and potential for inclusion in the Wilderness System as it existed in 1977. Count III alleges that the Forest Service’s plastic pipe installation, new bridge construction, and reconstruction projects upgrading trails for four-wheel off-road vehicle use in the Hyalite Porcupine Buffalo Horn Study Area violate the Act. Count VI alleges that the Forest Service’s action in the West Pioneers Study Area — dynamiting boulders on trails to allow use of four-wheelers, adding gravel to trails, and constructing a new trail for motorized use— has led to an increase in the type and amount of off-road vehicle use, and diminished the area’s wilderness characteristics and suitability for inclusion in the Wilderness System. On cross motions for summary judgment, the district court granted summary judgment for the Wilderness Association on all three counts. The district court determined it had jurisdiction under the APA and concluded that the Forest Service violated the Act by failing “to consider whether, how, and to what extent its management decisions have impacted the wilderness character of the areas as they existed in 1977,” and by failing “to develop discernible criteria for assessing and maintaining the wilderness character of non-motorized use areas while conducting trail maintenance and improvement in areas of motorized use.” The district court issued a declaratory judgment and an injunction requiring the Forest Service “to comply with the [Act] and to take reasonable steps to restore the wilderness character of each [Study Area] if its wilderness character has been diminished since 1977.” The Forest Service and Intervenors timely appealed, arguing that the district court lacked subject matter jurisdiction under the APA and should not have granted summary judgment for the Wilderness Association. STANDARD OF REVIEW This court reviews de novo the existence of subject matter jurisdiction and a district court’s grant of summary judgment. Delta Sav. Bank v. United States, 265 F.3d 1017, 1021, 1024 (9th Cir.2001). We view the evidence in the light most favorable to the nonmoving party to determine whether any genuine issues of material facts exist and whether the district court correctly applied the relevant substantive law. Balint v. Carson City, Nev., 180 F.3d 1047, 1050 (9th Cir.1999) (en banc). DISCUSSION I Section 706(2) Of The APA Section 706(2) of the APA authorizes courts to “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” or “short of statutory right.” 5 U.S.C. §§ 706(2)(A), (C). To establish subject matter jurisdiction under this section, the Wilderness Association must demonstrate that the Forest Service’s maintenance activities constitute final agency action. Ecology Ctr., Inc. v. U.S. Forest Serv., 192 F.3d 922, 925 (9th Cir.1999). The district court identified the Forest Service’s trail maintenance and improvement work alleged in Counts III and VI as the final “agency action” subject to review. The Forest Service argues that this “routine maintenance work” is not final agency action. We agree. Two conditions must be met for agency action to be considered final under the APA. Id. at 925. First, “the action should mark the consummation of the agency’s decision making process; and [second], the action should be one by which rights or obligations have been determined or from which legal consequences flow.” Id. (citing Bennett v. Spear, 520 U.S. 154, 177, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)). Trail maintenance does not “mark the consummation of the [Forest Service’s] decision making process.” Bennett, 520 U.S. at 177, 117 S.Ct. 1154. The Forest Service’s maintenance activities implement its travel management and forest plans adopted for the Study Areas. The House Report for the Act states, “[n]othing in the [the Act] will prohibit the use of off-road vehicles, unless the normal Forest Service planning process and travel planning process, which applies to all national forest lands, determines off-road vehicle use to be inappropriate in a given area.” H.R.Rep. No. 95-620, at 159 (1977) (emphasis added). This legislative history suggests that Congress intended forest and travel management plans to be the consummation of the decision making process with regard to trails allowing off-road vehicle access. Thus, the maintenance of trails designated by those plans is merely an interim aspect of the planning process, not the consummation of it. In addition, the Forest Service’s maintenance of trails does not fit into any of the statutorily defined categories for agency action. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 899, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (stating the plaintiff “cannot demand a general judicial review of the BLM’s day-to-day operations”). “Agency action” is defined to include “the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). Jurisdiction under section 706(2) is inappropriate here because the Wilderness Association failed to identify any final “agency action” as defined by the APA. Accordingly, the district court did not have subject matter jurisdiction under the APA to grant summary judgment on Counts III and VI, and we reverse that portion of the district court’s order. II Section 706(1) Of The APA Section 706(1) of the APA authorizes judicial review to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). Judicial review is appropriate if the Wilderness Association makes a showing of “agency recalcitrance ... in the face of clear statutory duty or ... of such a magnitude that it amounts to an abdication of statutory responsibility.” ONRC Action v. Bureau of Land Mgmt. (“BLM”), 150 F.3d 1132, 1137 (9th Cir.1998) (quoting Public Citizen Health Research Group v. Comm’r, Food & Drug Admin., 740 F.2d 21, 32 (D.C.Cir.1984)). The Forest SSrvice argues that its duties under the act are discretionary and no clear statutory duty exists to authorize review under section 706(1). The Forest Service relies on this court’s decision in ONRC Action for support. 150 F.3d 1132. The plaintiffs in ONRC Action alleged that the BLM’s refusal to impose a moratorium on certain actions pending completion of an Environmental Impact Statement “would violate the mandates of [the National Environmental Policy Act (“NEPA”) ], requiring preservation of alternatives during the EIS process.” 150 F.3d at 1134-35. They alleged also a violation of the Federal Land Management Policy Act (“FLMPA”), requiring revision of land use plans when “appropriate.” Id. at 1135, 1139 (quoting 43 U.S.C. § 1701). On the FLMPA claim, we explained that the FLMPA and its implementing regulations set forth policy statements and general guidance, and allow for revision of land use plans without a schedule mandating when plans must be revised, but that neither the FLMPA nor its regulations set forth a clear statutory mandate. Id. at 1139-40. We characterized the plaintiffs’ challenge as “one seeking to compel compliance with NEPA and FLMPA” and determined that the action was not subject to review under section 706(1) because the BLM did not have a clear duty to impose the requested moratorium under either NEPA or the FLMPA. Id. at 1137-38, 1140. Here, however, the Act does more than provide a mere policy statement or general guidance; it establishes a management directive requiring the Forest Service to administer the Study Areas to “maintain” wilderness character and potential for inclusion in the Wilderness System. Unlike the requested moratorium in ONRC Action, the Forest Service’s duty to maintain wilderness character and potential is a nondiscretionary, mandatory duty that it may be compelled to carry out under section 706(1). The Forest Service argues that even if the Act provides a specific, mandatory duty, the Wilderness Association has not alleged facts demonstrating the Forest Service’s complete failure to act, and that review is permitted under section 706(1) “only where there has been a genuine failure to act.” Ecology Ctr., 192 F.3d at 926. In Ecology Center, the plaintiffs claimed that the Forest Service had not complied with monitoring duties imposed by NEPA and its implementing regulations. Id. at 923. This court declined to find a “failure to act” because the record demonstrated “that the Forest Service performed extensive monitoring and provided detailed reports recounting its observations,” even though it “failed to conduct its duty in strict conformance with” regulations. Id. at 926. In Ecology Center, the duty was simply to monitor and the record demonstrated that the Forest Service had performed several actions to comply with this duty. Here, the duty is to maintain a specified goal, i.e., wilderness character and potential for inclusion in the Wilderness System, and the record does not demonstrate that the Forest Service performed its obligations in an extensive and detailed manner as it did in Ecology Center. While the Forest Service recited the requirements of the Act in some of its decisions, those decisions did not assess whether wilderness character and potential had actually been maintained in the Study Areas. The simple fact that the Forest Service has taken some action to address the Act is not sufficient to remove this case from section 706(1) review. We conclude therefore that the district court did have subject matter" jurisdiction to hear this claim. However, the district court articulated the “clear statutory duty” in this case as the Forest Service’s duty to “consider the impact of its decisions on the nature, quality, and scope of the [Study Areas’] wilderness character as it existed in 1977.” (Emphasis added). We respectfully disagree. The Forest Service’s statutory duty under the Act is more specific. The Forest Service’s failure to consider the impact of its decisions on wilderness character and potential may be relevant to its duty to maintain the wilderness character and potential, but a simple failure to consider without more is not enough to violate the duty if the area has been “administered so as to maintain [its] presently existing wilderness character and potential for inclusion” in the Wilderness System. The Forest Service presented sufficient evidence to support its claim that it has administered the Study Areas so as to maintain wilderness character and potential, and the Wilderness Association has submitted evidence indicating the opposite. Thus, the record reveals a genuine issue of material fact as to whether the Forest Service has discharged its duty to administer the Study Areas so as to maintain their wilderness character and potential for inclusion in the Wilderness System. Accordingly, we reverse the district court’s grant of summary judgment, vacate the injunction, and remand for trial on this issue. CONCLUSION We conclude that the district court has subject matter jurisdiction over the claims in Count I under section 706(1) of the APA. However, because genuine issues of material fact exist regarding whether the Forest Service met its duty to administer the Study Areas to maintain wilderness character and potential for inclusion in the Wilderness System, we reverse the district court’s grant of summary judgment on Count I and remand for trial. In addition, we reverse the district court’s grant of summary judgment on the agency action alleged in Counts III and VI because the district court lacked subject matter jurisdiction under section 706(2) of the APA. To the extent the Wilderness Association’s claims in Counts III and VI were based on the Forest Service’s alleged inaction, the district court has jurisdiction under section 706(1) of the APA, but genuine issues of material fact exist precluding summary judgment; accordingly, we also remand for trial on the agency inaction issue in Counts III and VI. Because we reverse the district court’s grant of summary judgment on all counts, we vacate the injunction issued by the district court. AFFIRMED in part, REVERSED in part, and REMANDED for trial. The parties shall bear their own costs of this appeal. . The remaining counts were either dismissed or subsumed by Count I. . The district court also pointed to the Forest Service’s failure to "develop discernable criteria” for wilderness characteristics as an agency action. The Act, however, does not require the Forest Service to develop criteria, and this type of claim more appropriately fits into the "failure to act” category of Section 706(1). . To the extent Counts III and VI allege claims based on agency inaction under section 706(1), the district court has jurisdiction and the discussion at infra Part II applies.

Southern Utah Wilderness Alliance v. Norton

EBEL, Circuit Judge. The Southern Utah Wilderness Afiance and a number of other organizations (collectively, SUWA) brought suit in the United States District Court for the District of Utah against the Bureau of Land Management (BLM), alleging, among other claims, that the BLM violated the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. § 1701 et seq., and the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., by not properly managing off-road vehicle and/or off-highway vehicle (collectively, ORV) use on federal lands that had been classified by the BLM as Wilderness Study Areas (WSAs) or as having “wilderness qualities.” SUWA sought relief under the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., claiming that the BLM should be compelled under § 706(1) of the APA to carry out mandatory, nondiscretionary duties required by the FLPMA and NEPA. See 5 U.S.C. § 706(1). The district court rejected SUWA’s arguments and dismissed the relevant claims for want of subject matter jurisdiction. In reaching this conclusion, the district court reasoned that as long as an agency is taking some action toward fulfilling mandatory, nondis-cretionary duties, agency action may not be compelled pursuant to § 706(1). The district court also suggested that the BLM could not be compelled to comply with provisions in a land use plan (LUP) promulgated pursuant to the FLPMA unless or until the BLM undertook or authorized an “affirmative projeet[]” that conflicted with a specific LUP requirement. Finally, the court concluded that the BLM did not abuse its discretion in determining that a supplemental Environmental Impact Statement (SEIS) was not necessary based on new information about increased ORV use. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we REVERSE and REMAND. Our remand, however, is a narrow one, concluding only that the district court erred in dismissing this case for lack of subject matter jurisdiction and in con-eluding, at the motion to dismiss stage, that SUWA failed to state a claim that the BLM had a duty to consider a SEIS based on new circumstances. The merits of the claim will need to be addressed on remand. I.Procedural Background On October 27, 1999, SUWA filed suit in the district court alleging that the BLM had “failed to perform its statutory and regulatory duties” by not preventing harmful environmental effects associated with ORV use. On November 24, 1999, a group of ORV users (the Recreationists) filed a motion to intervene in the suit, which the district court subsequently granted. Two months after the district court allowed the Recreationists to intervene, SUWA filed a second amended complaint that asserted ten causes of action against the BLM and that sought to have the court compel agency action under § 706(1) of the APA. Three of these claims — that the BLM failed to comply with the FLPMA, refused to implement provisions of various land management plans, and did not take a “hard look” under NEPA at increased ORV use — are relevant to this appeal and will be discussed individually below. SUWA then moved for a preliminary injunction “to protect nine specific areas from further ORV damage.” The Recreationists responded to this motion by arguing that the claims were not actionable under § 706(1) and should be dismissed under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. On December 22, 2000, the district court denied SUWA’s preliminary injunction request and granted the BLM’s motion to dismiss. The court then certified the dismissed claims as final judgments under Rule 54(b) of the Federal Rules of Civil Procedure, and this appeal followed. II.Standard of Review A district court’s dismissal of claims under Rule 12(b)(1) is reviewed de novo. United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 547 (10th Cir.2001); SK Fin. v. La Plata County, 126 F.3d 1272, 1275 (10th Cir.1997). Any factual determinations made by the district court in making its jurisdictional ruling are reviewed for clear error. United Tribe, 253 F.3d at 547. III.FLPMA Claim under § 706(1) of the APA SUWA’s first argument on appeal is that the district court’s conclusion that § 706(1) of the APA did not give it subject matter jurisdiction over its FLPMA-based claims was erroneous. The core of SUWA’s argument is that the FLPMA imposes a mandatory, nondiscretionary duty on the BLM to manage WSAs in such a way that their wilderness values are not impaired. Ongoing ORV use, they allege, is impairing these values, and, therefore, they claim that the BLM must be compelled to prevent impairment caused by ORV use. For the reasons discussed below, we conclude that the BLM has a mandatory, nondiscre-tionary duty to manage the WSAs in accordance with the FLPMA’s nonimpairment requirement. We further conclude that, on the record before us, SUWA has presented a colorable claim that the BLM’s present management of the disputed WSAs may be violating the FLPMA’s mandate. Consequently, we reverse the district court’s dismissal of SUWA’s “non-impairment claim” for want of subject matter jurisdiction under § 706(1). A. FLPMA In 1976, Congress enacted the FLPMA, a “complex” and “comprehensive” statute that created a “versatile framework” for governing the BLM’s management of public lands. Rocky Mountain Oil & Gas Ass’n v. Watt, 696 F.2d 734, 737-38 (10th Cir.1982). The Act required that the Secretary of the Interior “prepare and maintain on a continuing basis an inventory of all public. lands and their resource and other values.” 43 U.S.C. § 1711(a); see Utah v. Babbitt, 137 F.3d 1193, 1198 (10th Cir.1998); Rocky Mountain Oil & Gas, 696 F.2d at 740. During this inventory process, the Secretary was to identify “roadless areas of five thousand acres or more and roadless islands of the public lands” that possessed “wilderness characteristics.” 43 U.S.C. § 1782(a). The process of identifying lands as having wilderness characteristics involved two steps. First, the BLM conducted an “initial inventory,” during which it “identif[ied] wilderness inventory units, which were defined as roadless areas of 5000 acres or more that may have wilderness characteristics.” Utah, 137 F.3d at 1198 (internal quotation marks omitted; emphasis added). After completing this initial inventory, the BLM then conducted an “intensive inventory of these units to determine whether the units possessed wilderness characteristics.” Id. (internal quotation marks omitted). Areas found by the BLM to possess wilderness characteristics were then designated by the BLM as Wilderness Study Areas, or WSAs. Id; Sierra Club v. Hodel, 848 F.2d 1068, 1085 (10th Cir.1988), overruled on other grounds by Vill. of Los Ranchos de Albuquerque v. Marsh, 956 F.2d 970 (10th Cir.1992) (en banc). The Act mandated that, within fifteen years of the FLPMA’s enactment, the Secretary review the WSAs and recommend to the President which WSAs would be suitable for “preservation as wilderness.” 43 U.S.C. § 1782(a). The FLPMA required that, two years after receiving the Secretary’s report, the President submit to Congress “his recommendations with respect to designation as wilderness of each such area.” § 1782(b). The FLPMA, however, provides that only Congress may actually designate land for wilderness preservation. Id. Consequently, until Congress either affirmatively designates or expressly rejects a particular WSA for wilderness preservation, the FLPMA mandates that the BLM “shall continue to manage” the WSAs “in a manner so as not to impair the suitability of such areas for preservation as wilderness.” § 1782(c) (emphasis added); see also Hodel, 848 F.2d at 1085 (explaining the BLM’s obligation to preserve WSAs); Sierra Club v. Clark, 774 F.2d 1406, 1408 (9th Cir.1985) (discussing how areas designated for preservation must not be impaired). Thus, once land is designated as an WSA, the FLPMA imposes an immediate and continuous obligation on the BLM to manage such parcels in such a way that they will remain eligible for wilderness classification should Congress decide to designate the areas for permanent wilderness preservation. Hodel, 848 F.2d at 1085; Interim Management Policy for Lands Under Wilderness Review (IMP) at 5 (Aplt.App. at 192). B. 706(1) of the APA Section 706(1) of the APA provides that federal courts “shall” “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1); see also Forest Guardians v. Babbitt, 174 F.3d 1178, 1187 (10th Cir.1999) (“Through § 706 Congress has stated unequivocally that courts must compel agency action unlawfully withheld or unreasonably delayed” (emphasis added).); Marathon Oil Co. v. Lujan, 937 F.2d 498, 500 (10th Cir.1991) (“Administrative agencies do not possess the discretion to avoid discharging the duties that Congress intended them to perform.”). Under either the “unreasonably delayed” or “unlawfully withheld” prongs of § 706(1), federal courts may order agencies to act only where the agency fails to carry out a mandatory, nondiscretionary duty. Forest Guardians, 174 F.3d at 1187-88. By contrast, if a duty is not mandated, or if an agency possesses discretion over whether to act in the first instance, a court may not grant relief under § 706(1). Id. at 1187-89. Importantly, compelling agency action is distinct from ordering a particular outcome. Courts have regularly held that an agency may be required to take action and make a decision even if the agency retains ultimate discretion over the outcome of that decision. In Mt. Emmons Mining Co. v. Babbitt, 117 F.3d 1167 (10th Cir.1997), for example, this court rejected the Secretary of the Interior’s claim that he could not be compelled to process a mining patent application because it was not clear that the parties were “unquestionably entitled to a patent.” Id. at 1172. Instead, we held that the Secretary could be ordered to comply with statutorily-mandated processing requirements even if the Secretary ultimately had discretion over whether to approve the application. Id.; see also Marathon Oil, 937 F.2d at 500 (upholding district court order to process applications but reversing order instructing approval of applications as exceeding court’s authority); Estate of Smith v. Heckler, 747 F.2d 583, 591 (10th Cir.1984) (ordering the Secretary of Health and Human Services to promulgate regulations). C. Analysis of FLPMA Claim SUWA acknowledges that the BLM possesses considerable discretion over how it might address activity causing impairment. Nonetheless, SUWA argues that the BLM can be ordered to comply with the FLPMA’s nonimpairment mandate, even if the BLM retains discretion over the means of prevention. The BLM and the Recreationists respond by offering several reasons as to why ORV use in the relevant lands is not subject to § 706(1) review and cannot be considered impairment. First, they argue that the IMP’S nonimpairment mandate “affords BLM discretion in not only how it will act, but also whether it will act,” thus removing the agency’s inactions from review under § 706(1). Second, the Appel-lees, particularly the BLM, contend that § 706(1) may only be invoked where “final, legally binding actions ... have been unlawfully withheld or unreasonably delayed.” Third, assuming the BLM has a mandatory duty to prevent ORV-caused impairment, they argue that SUWA’s claim is, in reality, a challenge to the sufficiency of the BLM’s efforts to prevent impairing activity caused by ORV use rather than a claim that the BLM has failed to act. Undertaking our de novo review, we first address' the arguments raised by the BLM and the Recreationists. 1. Discretion under Nonimpairment Mandate As touched on above, the BLM first argues that the district court’s dismissal of SUWA’s impairment for lack of subject matter jurisdiction claims was proper because the BLM has “considerable discretion ... to determine both what constitutes impairment and what action to take if it finds that impairment is occurring or is threatened.” The BLM’s argument, however, misses the narrow jurisdictional issue presented on appeal, i.e., whether the BLM has a nondiscretionary, mandatory duty that it may be compelled to carry out under § 706(1). Neither side seriously disputes that the BLM has such a duty under the FLPMA, which mandates that the BLM manage WSAs in such a way as not to impair their wilderness values. See 43 U.S.C. § 1782(c). In this case, the district court conceded that SUWA offered color-able evidence suggesting that ongoing ORV activity in the WSAs has seriously impaired the wilderness values of the WSAs at issue, acknowledging in its decision that SUWA had “presented significant evidence about the alleged impairment that is occurring in the WSAs due to ORV use.” Certainly, the BLM is correct in arguing, as it does on appeal and as it did before the district court, that we must give considerable deference to its interpretation of the nonimpairment mandate, see Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994); Lamb v. Thompson, 265 F.3d 1038, 1047 (10th Cir.2001); Kurzet v. Comm’r, 222 F.3d 830, 844 (10th Cir.2000), particularly as laid out in the Interim Management Policy for Lands Under Wilderness Review (IMP), a BLM-promulgated regulation that significantly interprets the FLPMA’s nonimpairment mandate. See Hodel, 848 F.2d at 1087; Rocky Mountain Oil & Gas, 696 F.2d at 745. As we have previously explained, as long as “an agency’s interpretation of its own regulations does not violate the Constitution or a federal statute, it must be given controlling weight unless it. is plainly erroneous or inconsistent with the regulation.” Mission Group Kan., Inc. v. Riley, 146 F.3d 775, 780 (10th Cir.1998) (internal quotation marks omitted). Similarly, the BLM is correct that, to the extent the IMP and the FLPMA give it substantial discretion in deciding how it will implement the FLPMA’s nonimpairment mandate and address potentially impairing activities, a court’s ability to compel it to take specific steps to prevent impairment is curtailed, see, e.g., Mt. Emmons, 117 F.3d at 1172; Marathon Oil, 937 F.2d at 500, a point SUWA concedes. The BLM’s arguments, however, go to the merits of the present suit, and to the possible remedy if impairment is found, not to whether federal courts possess subject matter jurisdiction under the APA to order the BLM to comply with ■ the FLPMA’s nonimpairment mandate. The BLM seems to confuse the principle that, when deciding whether an area is being impaired, courts must give deference to the BLM’s interpretation of the FLMPA’s nonimpairment mandate, with the statutory standard making the nonimpairment obligation mandatory. Similarly, the BLM appears at times to assume erroneously that because it possesses discretion over the implementation of the nonimpairment mandate, the nonimpairment obligation is itself wholly discretionary. We do not address on this appeal whether ORV use in the region is impairing the WSA’s wilderness values. Upon remand, the district court will have to address that issue after analyzing the evidence before it and giving appropriate deference to the IMP. Such deference and discretion do not, however, immunize the BLM from its clear, nondis-cretionary duty “to manage such lands ... so as not to impair the suitability of such areas for preservation as wilderness,” 43 U.S.C. § 1782(c), as compelled by § 706(1). Should, therefore, the district conclude that the alleged ORV use represents a failure by the BLM to manage the disputed WSAs in accordance with the FLPMA’s nonimpairment mandate, it must compel the agency to comply with its legal duty. Forest Guardians, 174 F.3d at 1187. 2. Final Action Argument On appeal, the BLM also asserts that § 706(1) only applies to “final, legally binding actions that have been unlawfully withheld or unreasonably delayed.” Apparently, the BLM believes that a court may only compel agency action under § 706(1) if the unlawfully withheld action would itself be considered a “final” action under § 704 of the APA, which limits judicial review to final agency actions. 5 U.S.C. § 704. According to the BLM, § 706(1) is not available for “day-to-day management actions,” which, in its view, includes dealing with the ORV use at issue in this case. In essence, the BLM seems to argue that, because it could prevent impairment by ORV use through steps that might not themselves be considered a final agency action, federal courts lack subject matter jurisdiction under § 706(1) over these “day-to-day” decisions. We find the BLM’s finality argument unpersuasive, for it seems to read finality in an inappropriately cramped manner. Contrary to the implications of the BLM’s argument, the APA treats an agency’s inaction as “action.” 5 U.S.C. § 551(13) (defining “agency action” as including a “failure to act”). Where, as here, an agency has an obligation to carry out a mandatory, nondiscretionary duty and either fails to meet an established statutory deadline for carrying out that duty or unreasonably delays in carrying out the action, the failure to carry out that duty is itself “final agency action.” Once the agency’s delay in carrying out the action becomes unreasonable, or once the established statutory deadline for carrying out that duty lapses, the agency’s inaction under these circumstances is, in essence, the same as if the agency had issued a final order or rule declaring that it would not complete its legally required duty. See Coalition for Sustainable Res., Inc. v. United States Forest Serv., 259 F.3d 1244, 1251 (10th Cir.2001) (explaining circumstances in which agency inaction may be considered “final”); Sierra Club v. Thomas, 828 F.2d 783, 793 (D.C.Cir.1987) (“[I]f an agency is under an unequivocal statutory duty to act, failure to so act constitutes, in effect, an affirmative act that triggers ‘final agency action’ review.”). Cf. Daniel P. Selmi, Jurisdiction To Review Agency Inaction Under Federal Environmental Law, 72 Ind. L.J. 65, 99-101 (1996) (discussing constructive final agency action); Peter H.A. Lehner, Note, Judicial Review of Administrative Inaction, 83 Colum. L.Rev. 627, 652-55 (1983) (explaining that finality may be found when an agency fails to act by a statutorily imposed deadline or unreasonably delays acting). Consequently, contrary to the BLM’s argument, the Bureau’s alleged failure to comply with the FLPMA’s nonimpairment mandate can be considered a final action under § 704 that is subject to compulsion under § 706(1). Therefore, the failure of an agency to carry out its mandatory, nondiscretionary duty either by an established deadline or within a reasonable time period may be considered final agency action, even if the agency might have hypothetically carried out its duty through some “non-final” action. Accordingly, we reject the BLM’s “final, legally binding” argument. 3. Partial Compliance Even if it has a mandatory duty to prevent ORV-induced impairment, the BLM argues that it cannot be compelled to act under § 706(1) because it has taken some partial action to address impairing ORV activity. By and large, the district court rested its jurisdictional ruling on this rationale, reasoning that the BLM could not be compelled to comply with the non-impairment mandate because the BLM “presented significant evidence about the steps it is and has been taking to prevent [ORV-caused] impairment.” We disagree. It is undisputed that, at least since the instigation of litigation, the BLM has taken some action, including closing certain roads and posting signs indicating that ORV use is prohibited in certain areas, to address alleged impairment of the WSAs caused by ORV use. However, the mere fact that the BLM has taken some action to address impairment is not sufficient, standing alone, to remove this case from § 706(1) review, as the BLM would have us hold. Indeed, if we were to accept the BLM’s argument, we would, in essence, be holding that as long as an agency makes some effort to meet its legal obligations, even if that effort falls short of satisfying the legal requirement, it cannot be compelled to fulfill its mandatory, legal duty. Certainly, the BLM should be credited for the actions it has taken to comply with the nonimpairment mandate; it does not follow, however, that just because the BLM attempts to comply with the nonimpairment mandate, it thereby deprives a court of subject matter jurisdiction to determine whether it has actually fulfilled the statutorily mandated duty and potentially compel action if that duty has not been fulfilled. In support of its argument, the BLM invokes a few decisions from the Ninth Circuit, suggesting that as long as an agency is taking some action toward fulfilling its legal obligations, courts may not compel compliance under § 706(1). And, indeed, in Ecology Ctr., Inc. v. United States Forest Serv., 192 F.3d 922 (9th Cir.1999), the Ninth Circuit refused to grant relief under § 706(1) where the “Forest Service merely failed to conduct its duty in strict conformance with [a Forest] Plan and NFMA Regulations.” Id. at 926. However, with all due respect, we find the Ninth Circuit’s analysis on this point unpersuasive. First, in Ecology Center, the Ninth Circuit refused to compel the Forest Service to conduct monitoring activities in strict compliance with a forest plan and federal regulations because doing so “would discourage the Forest Service from producing ambitious forest plans.” 192 F.3d at 926. Whether requiring a federal agency to comply with its own regulations would discourage that agency from enacting the regulations in the first place, however, is irrelevant for § 706(1) purposes. Our inquiry under § 706(1) is not whether, as a policy matter, particular outcomes would be encouraged or discouraged, but whether the agency has unlawfully withheld or unreasonably delayed a legally required, nondiscretionary duty. Cf. Forest Guardians, 174 F.3d at 1187-88 (explaining that § 706(1) requires a court to compel agency action once it has determined that the agency had withheld a legally required duty). Further, the court in Ecology Center viewed the monitoring activity as merely precursor data-gathering activity to support later planned final agency action in amending or revising a forest plan. By contrast, here the nonim-pairment mandate obligation of the BLM is a discrete obligation having independent significance apart from any further final agency action. Ecology Center also quoted the D.C. Circuit’s decision in Public Citizen v. Nuclear Regulatory Comm’n, 845 F.2d 1105 (D.C.Cir.1988), warning that “[a]lmost any objection to agency action can be dressed up as an agency’s failure to act” and cautioning courts against entertaining § 706(1) suits where an agency has taken some action. 845 F.2d at 1108. We find, however, that Public Citizen is readily distinguishable. At issue in Public Citizen was the Nuclear Regulatory Commission’s issuance of nonbinding regulations “for the training and qualifications of nuclear power plant personnel.” Id. at 1106. A relevant federal statute required the agency to issue binding regulations, and the appellant in that case sued, seeking to compel the agency to issue binding regulations. Id. Applicable federal statutes, however, required the appellant to bring suit challenging final agency actions or an alleged failure to act within, at most, 180 days of the agency’s decision or inaction, a deadline the appellant clearly missed if measured by the issuance of the nonbinding regulations. Id. at 1107. Consequently, the issue directly before the D.C. Circuit was not whether the agency’s issuance of nonbinding regulations insulated it from § 706(1) review, but whether the issuance of the nonbinding regulations was sufficient action to start the running of the 180-day statute of limitations period, notwithstanding the nonbinding nature of the regulations. The D.C. Circuit found the nonbinding regulations were “a formal product of the Commission, published in the Federal Register, and expressly staffed] [by the agency] that it is responsive to the mandate of the Nuclear Waste Policy Act.” Id. at 1108. Thus, by the clear statement of the agency itself, the issuance of the nonbinding regulations was intended to be final agency action, which triggered the running of the statute of limitations. The statute of limitations could not be circumvented merely by arguing that the agency’s performance was inadequate and thus should be considered an ongoing failure to act, resulting in an evergreen cause of action for failure to act. The situation in the case before us is totally different. Here, it is alleged that the BLM is in ongoing violation of a duty to prevent impairment of the WSAs. That is an independent duty, and the BLM is not asserting that it has taken final agency action that should have triggered a statute of limitations barring SUWA’s claim. We, therefore, disagree with the notion that Public Citizen stands for the proposition that any time an agency takes some steps toward fulfilling a legal obligation, it is insulated from § 706(1) review. Nevada v. Watkins, 939 F.2d 710 (9th Cir.1991), another Ninth Circuit decision cited by the BLM, also is inapposite. The court there simply held that the issuance of preliminary guidelines for evaluating a nuclear waste disposal site was not a final agency action because Congress, in the Nuclear Waste Policy Act, declared that such conduct should not be deemed final agency action. Id. at 714 n. 11. Obviously, we have no such clear congressional determination here. Accordingly, we reject the BLM’s contention that, because it has taken some steps to address impairment caused by ORV use, it is immune from § 706(1) review. D. Conclusion Regarding FLPMA Claim In summary, we find that the BLM has a mandatory, nondiscretionary duty to prevent the impairment of WSAs, and in this case, as the district court acknowledged in its decision, SUWA’s complaint presents colorable evidence suggesting that ongoing ORV use has or is impairing the disputed WSAs’ wilderness values, possibly in violation of the FLPMA’s nonimpairment mandate. The fact that the BLM could, in theory, prevent the allegedly impairing ORV use through means other than a final agency action, and that the BLM is taking some steps to prevent ORV-induced impairment, does not deprive the district court of subject matter jurisdiction under § 706(1) to consider the issue. Therefore, we reverse the district court’s conclusion that it lacked subject matter jurisdiction over SUWA’s impairment claims. On remand, the district court, giving appropriate deference to the IMP’s definition of impairment, must determine whether the BLM has, in fact, failed to comply with the FLPMA’s the nonimpairment mandate. IV. Duties under the Land Use Plans SUWA also alleges on appeal that the BLM failed to carry out a mandatory duty to manage several areas “in accordance with [their] land use plans.” The district court dismissed the SUWA’s LUP-based claims on two grounds. The district court reasoned on the one hand that, under relevant regulations, compliance with forest management plans is “limited only to affirmative projects either approved or undertaken after the RMP is in place; [the applicable regulation] does not require that further planning activities contemplated by the plan actually take place.” Because SUWA’s complaint did not focus on “some site-specific action,” the district court concluded that the BLM could not be compelled under § 706(1) to comply with the “monitoring” and ORV-implementation plans promised in LUPs. Alternatively, the district court explained, SUWA’s claims were simply a challenge to “the sufficiency of [the] BLM’s actions, rather than a failure to carry out a clear ministerial duty.” On appeal, the BLM urges us to affirm based on the reasons identified by the district court. In addition, the BLM argues that LUPs do not create mandatory, nondiscretionary duties because LUPs “are not Congressional mandates, and they are subject to contingencies, such as availability of funds, personnel and the presence of competing priorities.” We find the arguments articulated by the BLM and the district court unpersuasive. A. LUPs The FLPMA requires the Department of the Interior and the BLM to “manage the public lands ... in accordance with the land use plans [LUPs] developed ... under section 1712 [of the FLPMA].” 43 U.S.C. § 1732(a). Section 1712, in turn, identifies a number of criteria and concerns that must be taken into account in developing LUPs. Id. § 1712(h), (c); see also 43 C.F.R. § 1610.2 (discussing public participation in LUPs). At issue in this case are the LUPs for lands characterized as the “Factory Butte and San Rafael areas.” It is undisputed that in 1990, an LUP identified Factory Butte as a region requiring special monitoring for ORV use, stated that the “[t]he area will be monitored and closed if warranted,” and indicated that “[r]esource damage will be documented and recommendations made for corrective action.” The BLM acknowledges that between 1990 and 2000 it did not fully comply with the Factory Butte monitoring pledge. In particular, it failed to maintain a monitoring supervision file specified in the LUP. In 1991, the BLM created the San Rafael LUP, which called for designation of ORV trails “following completion of an ORV implementation plan,” which was scheduled to be completed within one year of the LUP’s approval. In turn, the ORV implementation plan was to develop criteria for determining what areas in San Rafael would be open to ORV use. During the course of the litigation, the BLM admitted that it prepared an ORV implementation plan on October 6, 1997, but that it had been only partially implemented. B. LUP Claim As an initial matter, we reject the BLM’s contention that it did not have a mandatory, nondiscretionary duty to carry out the activities described in the disputed LUPs. The Factory Butte and San Rafael LUPs declare that Factory Butte “will be monitored” for ORV use and that an ORV implementation plan for San Rafael “will be developed.” The FLPMA, in turn, unequivocally states that “[t]he Secretary shall manage the public lands ... in accordance with the land use plans developed by him.” 43 U.S.C. § 1732(a); see also Pub. Lands Council v. Babbitt, 167 F.3d 1287, 1299 (10th Cir.1999) (noting how the BLM “shall manage” lands in accordance with LUPs); Natural Res. Def. Council, Inc. v. Hodel, 618 F.Supp. 848, 858 (E.D.Cal.1985) (same). Relevant regulations similarly provide that the BLM “will adhere to the terms, conditions, and decisions of officially approved and adopted resource related plans.” 43 C.F.R. § 1601.0-5(c). Therefore, a straightforward reading of the relevant LUPs, as well as applicable statutes and regulations, suggests that the BLM must carry out specific activities promised in LUPs. It is true, as the BLM and the Recre-ationists argue, that Congress intended LUPs to be dynamic documents, capable of adjusting to new circumstances and situations. See H.R.Rep. No. 94-1163, at 5 (1976), reprinted in 1976 U.S.C.C.A.N. 6175, 6179, quoted in Natural Res. Def. Council, Inc. v. Hodel, 624 F.Supp. 1045, 1059 (D.Nev.1985) (“The term ‘land use planning’ is not defined in [the] bill because it is a term now in general usage and permits a large variety of techniques and procedures and various alternatives.”). The BLM can draft LUPs in a way that optimizes the agency’s ability to respond to changing circumstances and conditions. However, the BLM cannot “ignore the requirements of the Forest Plan.” Sierra Club v. Martin, 168 F.3d 1, 4 (11th Cir.1999); see also Neighbors of Cuddy Mountain v. United States Forest Serv., 137 F.3d 1372, 1376-77 (9th Cir.1998) (same); Ore. Natural Res. Council Action v. United States Forest Serv., 59 F.Supp.2d 1085, 1094-95 (W.D.Wash.1999) (same). Similarly, the BLM’s right (in accordance with applicable environmental statutes, such as NEPA) to amend or alter existing LUPs does not free the agency from carrying out present obligations. Just as the BLM can be held accountable for failing to act with regard to its nonimpairment duty, it also can be held accountable for failing to act as required by the mandatory duties outlined in an LUP. Therefore, a colorable claim of failing to adhere to LUP duties provides a court with subject matter jurisdiction to consider whether the failure to act warrants relief under § 706(1). C. Future Action Argument We also find unconvincing the BLM’s claims that it is required to comply with the mandates of a LUP only when it undertakes a future, site-specific project. Undeniably, many federal lawsuits involving forest plans arise when a federal agency authorizes a particular action within a forest without complying with specific plan requirements. See, e.g., Sierra Club v. Martin, 168 F.3d 1, 3 (11th Cir.1999); Utah Envtl. Cong. v. Zieroth, 190 F.Supp.2d 1265, 1268 (D.Utah 2002); Forest Guardians v. United States Forest Serv., 180 F.Supp.2d 1273, 1277-78 (D.N.M.2001). Nothing in the FLPMA, however, indicates that the BLM is required to comply with LUPs only when it undertakes some future, site-specific action. Some Plan provisions may only restrict future, site-specific action, see Ohio Forestry Ass’n, Inc. v. Sieira Club, 523 U.S. 726, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998), while other Plan provisions may restrict the agency’s ongoing conduct or impose immediate duties on the agency even in the absence of future, site-specific proposals. As to the latter provisions, such as the ones at issue here, they have by their own terms immediate effect on the BLM. As discussed above, the FLPMA simply and straightforwardly declares, “[t]he Secretary shall manage the public lands ... in accordance with the land use plans developed by him.” 43 U.S.C. § 1732(a); see also Public Lands Council, 167 F.3d at 1299 (noting how the BLM “shall manage” lands in accordance with LUPs). It does not suggest that management “in accordance” with LUPs will occur only when some discrete post-plan action occurs, or that the BLM is not obligated to follow through on and carry out specific actions, such as monitoring for ORV use, promised in a LUP. Likewise, some regulations suggest that the BLM must comply the LUP requirements. See 43 C.F.R. § 1601.0-5(c) (explaining that the BLM “will adhere to the terms, conditions, and decisions of officially approved and adopted resource related plans”). The BLM invokes certain regulatory provisions that state that future management actions must conform to approved plans. See 43 C.F.R. § 1610.5-3(a); see also 43 C.F.R. § 1601.0-2. However, those regulations do not in any manner suggest that the BLM is relieved from implementing ongoing actions if they are specifically promised in the LUP itself. The BLM suggests that inaction cannot constitute a violation of a LUP. But the failure to implement a program specifically promised in an LUP carries the same effect as if the agency had taken an “affirmative” or “future” action in direct defiance of its LUP obligations. Cf. Coalition for Sustainable Res., 259 F.3d at 1251; Thomas, 828 F.2d at 793. As such, a court may compel the BLM to carry out a duty imposed by an LUP that has been unreasonably delayed or unlawfully withheld. See Martin, 168 F.3d at 4. Accordingly, we reverse the district court to the extent it dismissed SUWA’s LUP-based claims on the ground that the BLM’s obligation to comply with LUP is only triggered by “some [future] site-specific action taken by the BLM.” D. Partial Compliance For the reasons outlined in our discussion of SUWA’s nonimpairment claims, we also reverse the district court’s conclusion that the BLM cannot be compelled under § 706(1) to comply with the LUP requirements because, “while the BLM’s actions have not been carried out to the letter [of the LUPs], there has not been a complete failure to perform a legally required duty that would trigger review under § 706(1).” As previously explained, partial efforts toward completing a legally required duty do not prevent a court from compelling action under § 706(1). However, when the district court reviews the merits on remand, it can take into account the LUP’s mechanism for addressing changing circumstances and conditions in determining the scope of the duties involved and the agency’s attempted compliance. E. LUP Conclusion In summary, we find that the district court improperly dismissed SUWA’s LUP-based claims for want of subject matter jurisdiction. Contrary to the suggestions of the district court and the BLM, we hold that the BLM did have a mandatory, non-discretionary duty to comply with the Factory Butte LUP’s ORV-monitoring provision and the San Rafael LUP’s ORV-implementation provision. We reject the BLM’s arguments that (1) LUPs cannot impose mandatory, nondiscretionary duties and/or (2) can only impose mandatory duties when an affirmative, future, and site-specific action occurs. And, for reasons previously discussed, we reject the suggestion that the BLM’s efforts towards compliance with the LUP obligations, delayed for over a decade, preclude § 706(1) review. V. NEPA The third issue presented on appeal centers around the National Environmental Policy Act (NEPA) and the BLM’s alleged failure to take a “hard look” at information suggesting that ORV use has substantially increased since the NEPA studies for the disputed areas were issued. SUWA contends that, under § 706(1), the BLM should be compelled to take a hard look at this information to decide whether a supplemental environmental impact statement (SEIS) or supplemental environmental assessments should be prepared for certain affected areas. In particular, SUWA argues that the BLM’s most recent NEPA analyses for the San Rafael Swell, Parunu-weap, Behind the Rocks, and Indian Creek areas are dated and do not account adequately for recent increases in ORV activity. The BLM argues that it should not be compelled to take a hard look at the increased ORV use because it is “planning to conduct NEPA analysis of the nature of impacts of current levels of OHV use in all [the relevant] areas within the next several years,” subject to resource constraints. The BLM further argues that SUWA failed to raise its “hard look” argument before the district court, instead “resting only on [the] BLM’s alleged ‘failure to produce supplemental environmental impact statements.’ ” Significantly, the BLM does not directly dispute on appeal that the alleged ORV use requires a hard look, and it concedes that, “on a nation-wide level, it needs to revise many of its land management plans.” In its discussion of SUWA’s NEPA claim, the district court initially acknowledged that SUWA was seeking to compel the BLM to take a “hard look” at the ORV information. Yet it then rejected SUWA’s hard look claim on the ground that a court could not compel the BLM to prepare supplemental NEPA analyses based on the present record, suggesting in the process that SUWA was seeking to compel the production of a SEIS. For the reasons discussed below, we believe that the district court misinterpreted SUWA’s claim and applied the wrong analysis, and we find that the BLM’s arguments for affirming the district court’s ruling unconvincing. Consequently, we reverse the district court’s decision. A. Supplemental Analysis under NEPA Under NEPA, “ ‘major Federal actions significantly affecting the quality of the human environment’ must be preceded by an environmental impact statement or EIS.” Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1521 (10th Cir.1992) (citation omitted). Before creating an EIS, however, a government agency may prepare a document called an environmental assessment (EA). Friends of the Bow v. Thompson, 124 F.3d 1210, 1214 (10th Cir.1997). If after preparing the EA, the agency concludes that a proposed action will not significantly affect the environment, the agency may issue a “finding of no significant impact” (FONSI) and “need not prepare a full EIS.” Id.; see 40 C.F.R. § 1501.4(e). The primary goal of NEPA is to make sure a government agency carefully gathers and evaluates relevant information about the potential impact of a proposed agency action on the environment and that this information is made available to the public. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989); see also 40 C.F.R. § 1500.1(b) (“NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken.”). NEPA does not require an agency to reach a particular substantive outcome. Marsh v. Ore. Natural Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Envtl. Def. Fund, Inc. v. Andrus, 619 F.2d 1368, 1374 (10th Cir.1980). Due to this emphasis on informed decisionmaking, federal regulations require government agencies to prepare an SEIS or a supplemental EA (1) if the agency “makes substantial changes in the proposed action that are relevant to environmental concerns” or (2) “significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts” arise. 40 C.F.R. § 1502.9(c) (i)-(ii); see also Marsh, 490 U.S. at 372-73, 109 S.Ct. 1851; Colo. Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1177-78 (10th Cir.1999). As the Supreme Court explained, “It would be incongruous with th[e] approach to environmental protection ... for the blinders to adverse environmental effects, once unequivocally removed, to be restored prior to the completion of agency action simply because the relevant proposal has received initial approval.” Marsh, 490 U.S. at 371, 109 S.Ct. 1851. This court and the Supreme Court have recognized, however, that an agency does not have to supplement an EIS or an EA “every time new information comes to light.” Id. at 373, 109 S.Ct. 1851; Friends of the Bow, 124 F.3d at 1218 (quoting Marsh). “To require otherwise,” the Supreme Court has observed, “would render agency decisionmaking intractable, always awaiting updated information only to find new information outdated by the time a decision is made.” Marsh, 490 U.S. at 373, 109 S.Ct. 1851. Instead, “[t]he issue is whether the subsequent information raises new concerns of sufficient gravity such that another, formal in-depth look at the environmental consequences of the proposed action is necessary.” Wisconsin v. Weinberger, 745 F.2d 412, 418 (7th Cir.1984); see also S. Trenton Residents Against 29 v. Fed. Highway Admin., 176 F.3d 658, 663-64 (3d Cir.1999) (same). In evaluating an agency’s decision not to develop a SEIS or supplemental EA, courts utilize a two part test. First, they look to see if the agency took a “ ‘hard look’ at the new information to determine whether [supplemental NEPA analysis] is necessary.” Headwaters, Inc. v. Bureau of Land Mgmt., Medford Dist., 914 F.2d 1174, 1177 (9th Cir.1990); see also Marsh, 490 U.S. at 374, 109 S.Ct. 1851; Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 286 (4th Cir.1999). In applying the hard look test, courts may consider whether the agency “obtains opinions from its own experts, obtains opinions from experts outside the agency, gives careful scientific scrutiny, [ ] responds to all legitimate concerns that are raised,” Hughes River, 165 F.3d at 288 (citing Marsh, 490 U.S. at 378-85, 109 S.Ct. 1851), or otherwise provides a reasoned explanation for the new circumstance’s lack of significance. Second, after a court determines that an agency took the requisite “hard look,” it reviews an agency’s decision not to issue an SEIS or a supplemental EA under the APA’s arbitrary and capricious standard. Marsh, 490 U.S. at 377, 109 S.Ct. 1851; Colo. Envtl. Coalition, 185 F.3d at 1178; Friends of the Bow, 124 F.3d at 1218; Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 443 (4th Cir.1996). B. Hardlook Claim Turning to the merits of the parties’ arguments, we initially conclude that SUWA properly raised its “hard look” claim before the district court. A review of the district court proceedings indicates that SUWA claimed that the “BLM’s failure to take [a] ‘hard look’ ... is a clear violation of NEPA’s requirements.” In advancing this argument, SUWA distinguished the first step of supplemental NEPA review (whether an agency took a hard look at new information) from the second step (whether the agency acted arbitrarily and capriciously in not issuing an SEIS or a supplemental EA) and made clear it was challenging the BLM’s failure to take a “hard look,” not whether the BLM acted arbitrarily and capriciously in refusing to prepare a supplemental NEPA analysis. While SUWA did include a rhetorical flourish suggesting that “should the agency take the required hard look, the inescapable conclusion of that analysis must be that the ‘new circumstances’ ... require supplemental NEPA,” the BLM apparently recognized that SUWA was asserting a “failure to take a ‘hard look’ ” claim and responded accordingly. Consequently, we conclude that SUWA adequately raised and preserved its claim that the BLM should be compelled to take a hard look at new information suggesting “significant new circumstances ... relevant to environmental concerns and bearing” on its management of the disputed lands. 40 C.F.R. § 1502.9(c)(i)-(ii). Further, we conclude the district court erred by resolving SUWA’s claim on the ground that, based on the evidence currently before it, an actual SEIS or supplemental EA could not be ordered. C. Future NEPA Action We also believe that the BLM is misguided in claiming that because it will be undertaking NEPA analysis in the near future, a court cannot, or, at the very least, should not, require it to take a hard look at the increased ORV use. The BLM’s assertion that it hopes to fulfill, or even will fulfill, its NEPA obligations in the future does not address its current failures to act. Cf. Portland Audubon Soc’y v. Babbitt, 998 F.2d 705, 709 (9th Cir.1993) (“[W]e are unmoved by the Secretary’s claim that it would be futile to prepare supplemental EISs ... when its new Resources Management Plans and accompanying EISs will address all the relevant information.”). Similarly, the BLM’s claim that it should not be compelled to take a hard look at present ORV use because it faces budget constraints and because requiring such a review “would only divert BLM’s resources from its current and planned NEPA work” is unavailing. The BLM’s budgetary argument wrongly conflates financial constraints with the legal issue in this case: whether the BLM is required to take a hard look at increased ORV use under NEPA. An agency’s lack of resources to carry out its mandatory duties, we have reasoned, does not preclude a court from compelling action under § 706(1). Forest Guardians, 174 F.3d at 1189 n. 14 (holding that the unavailability of resources cannot be used as a defense against an action to compel an agency to carry out its mandatory, nondiscretionary duties); see also id. at 1192 (“Wisely, the Secretary does not press the argument that inadequate congressional appropriations relieved him of his ESA duties. We could not accept that argument if it had been raised.... ”). Instead, we have explained, an inadequate resource defense must be reserved for any contempt proceedings that might arise if the agency fails to carry out a mandatory duty after being ordered to do so by a court. Id. (expressing sympathy for the resources argument and noting that it “could arise at the contempt stage”). Additionally, we find the BLM’s claim that it should not be compelled to take a hard look at increased ORV use because it intends to conduct NEPA reviews in the near future problematic in light of its budget-based arguments. The BLM’s extensive discussion about the budgetary woes confronting it, as well as its concession that “limited resources will prevent [the] BLM from undertaking all of its desired [NEPA] planning efforts immediately,” raise serious questions about the likelihood of a future hard look actually occurring. Our concern on this score is only increased by the BLM’s failure to offer a concrete time table for when its NEPA activities will occur; all the BLM suggests is that further NEPA review will occur over the next “several” or “few” years. Accordingly, we conclude that the district court erred in concluding that it could not order the BLM to take a hard look at the information presented by SUWA. Cf. Hughes River, 81 F.3d at 446 (concluding that Agency violated NEPA by not taking a hard look at information before declining to issue a SEIS). VI. Conclusion In our view, the district court erroneously concluded that because the BLM has taken some steps toward addressing alleged ORV-caused impairment and toward complying with LUP requirements, it lacked subject matter jurisdiction under § 706(1) of the APA. We also find that the district court mistakenly believed that the BLM is only bound by the requirements of LUPs when it undertakes “affirmative, future actions” that conflict with mandatory LUP duties. Finally, we further conclude that the district court misapprehended the nature of SUWA’s NEPA claim. The alternative grounds for affirming the district court's ruling offered by the BLM, including its claim that unlawfully withheld action may only be compelled under § 706(1) if the withheld action, once carried out, would be considered final agency action, are unpersuasive. Accordingly, we REVERSE the district court’s decision and REMAND for proceedings consistent with this opinion. . SUWA filed its notice of appeal before the district court certified the dismissed claims for appeal under Rule 54(b). On February 5, 2001, this court issued a show cause order informing the parties that unless the district court either certified the dismissed claims under Rule 54(b) within thirty days or explicitly adjudicated the remaining claims within thirty days, the appeal would be dismissed. On February 9, 2001, the district court issued Rule 54(b) certification, and, upon receipt of the district court order, the question of appellate jurisdiction was referred to the panel hearing the merits of this case. Given that the parties obtained Rule 54(b) certification within thirty days of our show cause order, the premature notice of appeal is “deemed to [have] ripen[ed] as of the date of certification,” and we have “jurisdiction over the appeal.” United States v. Hardage, 982 F.2d 1491, 1494 (10th Cir.1993); cert. denied, 516 U.S. 1009, 116 S.Ct. 565, 133 L.Ed.2d 490 (1995); see Kelley v. Michaels, 59 F.3d 1055, 1057 (10th Cir.1995); Lewis v. B.F. Goodrich Co., 850 F.2d 641, 645-46 (10th Cir.1988) (en banc). . The FLPMA incorporates the Wilderness Act of September 3, 1964’s definition of "wilderness.” See 43 U.S.C. § 1782(a). That act, in relevant part, defines "wilderness” as an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, ... which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value. 16 U.S.C. § 1131(c). . In 1980, the BLM designated 2.5 million acres of federal land in Utah as WSAs. See 45 Fed.Reg. 75,602, 75,603 (Nov. 14, 1980). Four areas designated as WSAs are at issue in this case: Moquith Mountain, Parunuweap Canyon, Sid’s Mountain, and Behind the Rocks. . The FLPMA does not explain what the terms "preservation,” "wilderness,” or “impair” mean. The BLM, however, has interpreted this "nonimpairment” mandate in a document entitled the Interim Management Policy for Lands Under Wilderness Review (IMP), which was issued as a federal regulation at 44 Fed.Reg. 72,014. See Hodel, 848 F.2d at 1086; see also Rocky Mountain Oil & Gas, 696 F.2d at 739 n. 6 (explaining that the IMP was "promulgated using notice and comment procedures”). Courts give deference to the BLM's interpretation of the FLMPA, as expressed in the IMP, particularly where language in the FLMPA is ambiguous. See Hodel, 848 F.2d at 1087 (deferring to the IMP'S reconciliation of tensions within the FLPMA); Clark, 774 F.2d at 1409-10 (deferring to the BLM's interpretation of the FLMPA as announced in the IMP); Rocky Mountain Oil & Gas, 696 F.2d at 745 ("Where the [FLMPA] is ambiguous, we must afford deference to the interpretation given the statute by the agency charged with its administration.”). According to the IMP, "Management to the nonimpairment standard does not mean that the lands will be managed as though they had already been designated as wilderness.” Rather the nonimpairment standard requires the BLM "to ensure that each WSA satisfies [the definition of wilderness] at the time Congress makes a decision on the area.” "The Department therefore has a responsibility to ensure that the existing wilderness values of all WSAs ... are not degraded so far, compared with the areas’s values for other purposes, as to significantly constrain the Congress' prerogative to either designate a WSA as a wilderness or release it for other uses” (emphasis in original). As part of the nonimpairment mandate, the IMP mandates that the BLM may only authorize "non-impairing” activity in the WSAs. Under the IMP, use of WSA land will be considered "non-impairing” if two criteria are met. First, the use must be temporary in nature, meaning that it does not “create surface disturbance or involve permanent placement of structures” (emphasis added). The IMP defines "surface disturbance” as "any new disruption of the soil or vegetation which would necessitate reclamation.” Second, after the activity terminates, "the wilderness values must not have been degraded so far as to significantly constrain the Congress’s prerogative regarding the area’s suitability for preservation as wilderness.” . Although the district court indicated that its disposition of this case would have been the same regardless of whether the SUWA suit was characterized as one seeking to compel "unreasonably delayed” action or "unlawfully withheld” action, it concluded that SUWA’s claim amounted to one alleging an unreasonable delay. The district court, invoking our decision in Forest Guardians v. Babbitt, 174 F.3d 1178 (10th Cir.1999), reasoned that this action fell under the "unreasonably delayed” category because "there are no ‘date-certain deadlines’ by which [the] BLM’s ORV management must operate.” Unlike the district court, we believe that SUWA's nonimpairment claims fall in the "unlawfully withheld” category. We explained in Forest Guardians that "if an agency has no concrete deadline establishing a date by which it must act, and instead is governed only by general timing provisions ..., a court must compel only action that is delayed unreasonably. Conversely, when an entity governed by the APA fails to comply with a statutorily imposed absolute deadline, it has unlawfully withheld agency action and courts, upon proper application, must compel the agency to act.” 174 F.3d at 1190. As discussed above, the FLPMA imposes an immediate and continuous obligation on the BLM to manage a parcel designated as a WSA in such a way that its wilderness values are not impaired and the land always remains eligible for designation as permanent wilderness areas at any moment Congress might decide to give them that status. See 43 U.S.C. § 1782(c). We conclude that Congress did impose an absolute deadline by which the BLM has to prevent impairment because this duty begins the moment the land is designated as a WSA and continues until Congress makes a decision regarding permanent wilderness designation. While Congress did not state this deadline in a date specific manner, it nonetheless created a deadline: the time when Congress makes the decision on wilderness designation. . Courts have often explained that the standards for compelling agency action through a writ of mandamus and through § 706(1) are very similar, even though the availability of relief under the APA precludes mandamus relief. See, e.g., Mt. Emmons Mining Co. v. Babbitt, 117 F.3d 1167, 1170 (10th Cir.1997) ("The availability of a remedy under the APA technically precludes [a] request for a writ of mandamus, although the mandatory injunction is essentially in the nature of mandamus relief” (citations omitted).); Yu v. Brown, 36 F.Supp.2d 922, 928-29 (D.N.M.1999) ("Seeking to harmonize the Mandamus Statute with the APA, the Tenth Circuit has held that, since mandamus requires that no other remedy be available and the APA provides a means of challenging ... agency action, technically mandamus relief is no longer available in such cases. However, the court has also recognized [the similarity between mandamus relief and relief under the APA]” (citation omitted).); see also Independence Mining Co. v. Babbitt, 105 F.3d 502, 506-07 (9th Cir.1997) (analyzing a mandamus claim under § 706(1) because of similarities in the relief). There is, however, an important distinction between compelling agency action through a writ of mandamus and through § 706(1). Even if a party shows that the "prerequisites [for a writ of mandamus] have been met, a court still exercises its own discretion in deciding whether or not to issue the writ.” Marquez-Ramos v. Reno, 69 F.3d 477, 479 (10th Cir.1995) (emphasis added); see also Marathon Oil, 937 F.2d at 500 ("[T]he issuance of the writ is a matter of the issuing court's discretion.”). By contrast, once a court determines that an agency "unlawfully withheld” action, the APA requires that courts compel agency action. Forest Guardians, 174 F.3d at 1187-88 (explaining that the use of the word "shall” in § 706 means courts ‘‘must compel agency action unlawfully withheld”). . The IMP gives specific attention to ORV use when discussing impairing activity. For example, the IMP specifically notes that "[c]ross-country vehicle use off boundary roads and existing-ways” constitutes surface disturbance — specifically defined as "impairing” activity under the IMP — because "the tracks created by the vehicles leave depressions or ruts, compact the soils, and trample or compress vegetation.” The regulation also holds that vehicles may not drive off "existing trails” except (1) in emergency situations, (2) by state or federal officials to protect human life, safety, and property, (3) where the area was designated for ORV use prior to FLPMA, or (4) where the vehicle will be traversing on sand dunes or snow areas that have been designated for that type of recreational activity. Similarly, the IMP indicates that recreational activities normally permitted within WSAs may be restricted if they "depend upon cross-country uses of motor vehicles.” . Section 704 defines the limits of federal courts’ power to review actions by administrative agencies, declaring, “Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704. Agency action, in turn, is defined as including "the whole or a part of agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” Id. § 551(13); see also Lujan v. Nat’l Wildlife Fed'n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (explaining definition of agency action). . Courts have implicitly recognized that unlawfully withheld actions are considered final under § 704. Some emphasize, for example, that an agency must carry out nondiscretion-aiy duties required by law, without discussing whether the withheld duty would be considered a final agency action. Firebaugh Canal Co. v. United States, 203 F.3d 568, 577 (9th Cir.2000); Forest Guardians, 174 F.3d at 1187-88 (collecting Tenth Circuit cases explaining that an agency must carry out non-discretionary duties). Courts have sometimes described § 706(1) as an exception to the APA "finality" requirement. See, e.g., Independence Mining Co., 105 F.3d at 511 (citing Public Citizen v. Bowen, 833 F.2d 364, 367 (D.C.Cir.1987), and Public Citizen Health Research Group v. Comm’r, FDA, 740 F.2d 21, 30-32 (D.C.Cir.1984)). This description may be slightly inaccurate, however, for § 704 of the APA defines the type of agency actions subject to judicial review and, in relevant part, limits judicial review to final agency actions. 5 U.S.C. § 704. Section 706(1), by contrast, defines the "scope” of judicial review over reviewable agency actions. Id. § 706; see also Aladjem v. Cuomo, No. CIV-A-96-6576, 1997 WL 700511, at *3 n. 2 (E.D.Pa. Oct.30, 1997). . The BLM's argument has other weaknesses. First, it seems somewhat in tension with established precedent holding that an agency may be compelled to make a decision or implement a duty, even if the agency retains discretion over how it will carry out that duty. See, e.g., Mt. Emmons, 117 F.3d at 1172; Marathon Oil, 937 F.2d at 500; Yu, 36 F.Supp.2d at 931. Second, the BLM's position would seem to create a "no-man's-land” of judicial review, in which a federal agency could flaunt mandatory, nondiscretionary duties simply because it might be able to satisfy these duties through some form of non-final action. Third, in this case, it is clear that many of the steps the BLM might take to address impairment caused by ORV use would be considered final agency actions. Indeed, as all parties acknowledge, some of the Recreationists who intervened in this suit have brought a separate lawsuit challenging the BLM’s decision to close certain ORV routes in the disputed WSAs. Closing roads, fining unauthorized ORV users, licensing some users but not others, issuing new rules restricting ORV use, etc., possibly could all fall within the definition of a final agency action. See 5 U.S.C. § 551(13). . For example, on March 21, 2000, the BLM issued regulations closing 19 ORV routes in the Sids Mountain WSA and limiting ORV use to only "four designated routes.” The record further indicates that the BLM erected signs and barricades closing ORV routes and sought assistance from local ORV and environmental groups to effectuate restrictions on ORV use. In the Moquith Mountain WSA, the BLM began combating increased ORV use in 1993 by posting signs, sponsoring educational programs, and increasing limited law enforcement patrols. In 1998, the BLM followed up on these efforts by closing a number of ORV routes. The BLM also indicated that it was planning additional measures where compliance with these measure has not been as successful as hoped. As to the third WSA area, the Parunuweap WSA, the BLM published a management order in August 2000 limiting ORV use to designated travel routes and prohibiting cross-country ORV travel outside these areas. During testimony before the district court in 2000, the BLM also indicated that it had planned educational programs on ORV use, had ordered signs that would be posted on closed ORV routes in the area, and would be mailing ORV information to interested parties within several weeks, though it is not entirely clear whether the BLM ever implemented these plans. Finally, between 1990 and 2000, the BLM prohibited ORV travel in the Behind the Rocks WSA, placed information on bulletin boards explaining ORV restrictions, and posted signs and/or dragged objects in front of unauthorized ORV routes. According to testimony in the record, the BLM also monitored ORV activity in the region. . Imagine, for example, that applicable federal law prohibited logging in a national forest, yet the BLM only prohibited logging on half the forest, permitting, for one reason or another, logging on the remaining half. The logic of the BLM's argument would have us hold that, because the BLM successfully prevented logging on half, it could not be ordered to prevent logging on the remaining half, notwithstanding the BLM's failure to satisfy its legal obligation to prevent logging in the forest. . The Recreationists also cite to the Fifth Circuit case of Sierra Club v. Peterson, 228 F.3d 559 (5th Cir.2000) (en banc). However, we do not believe that case supports the BLM’s position. Rather, it essentially held that the plaintiffs' effort to enforce the Forest Service's monitoring obligations was not jus-ticiable. Id. at 566-68 & n. 11. There is no suggestion in that case that jurisdiction over the monitoring claim failed because of partial monitoring activity by the Forest Service. . This is not to suggest that the agency's attempted compliance is totally irrelevant to § 706(1) proceedings. In Forest Guardians, for example, we rejected the argument that budgetary constraints could excuse the Secretary of Interior’s ”fail[ure] to perform a non-.discretionary duty.” 174 F.3d at 1191. Nonetheless, we held that budgetary constraints could be considered when deciding what remedy the court should impose for the alleged violation or whether the Secretary should be held in contempt. Id. . The BLM invokes the Supreme Court's decision in Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998), to support its claim that courts cannot compel compliance with LUPs under § 706(1) because "agency plans are programmatic planning documents which are subject to continual review and refinement.” We find Ohio Forestry inapposite. Ohio Forestry does not stand for the proposition that the Forest Service cannot be compelled to conform its current conduct to LUPs. Rather, the Court held in Ohio Forestry that an environmental interest group's challenge to a forest plan allowing logging within a national forest was not ripe because, before any logging could occur, the Forest Service had to "focus upon a particular site, propose a specific harvesting method, prepare an environmental review, permit the public an opportunity to be heard, and (if challenged) justify the proposal in court.” 523 U.S. at 734, 118 S.Ct. 1665. Contrary to the BLM’s argument that Ohio Forestry held that a forest plan was merely a planning document with no legal effect, the Supreme Court said that "in [the] absence of [Plan authorization] logging could not take place.” Id. at 730, 118 S.Ct. 1665; see also Trent Baker, Judicial Enforcement of Forest Plans in the Wake of Ohio Forestry, 21 Pub. Land & Resources. L.Rev. 81, 107 (2000) (explaining that, even after Ohio Forestry, "agency decisions to ignore their own regulations are reviewable under the APA as final agency actions or failures to act”). Further, the plan provisions under review in Ohio Forestry, unlike the Plan provision being asserted here, do not purport to establish immediate obligations on the Forest Service but only set forth broad preconditions for further action. . The BLM’s refusal to adhere to promised monitoring programs, such as those discussed in the Factory Butte LUP, is in tension with regulations mandating that LUPs "establish intervals and standards, as appropriate, for monitoring and evaluation of the plan” and that forest managers "shall be responsible for monitoring and evaluating the plan in accordance with the established intervals and standards.” 43 C.F.R. § 1610.4-9. . On appeal, there has been some suggestion by the parties that SUWA's LUP claims, particularly with regard to the Factory Butte area, are now moot because the BLM implemented the LUP requirements after SUWA instituted the present litigation. On remand, the district court should consider whether some or all of the SUWA’s LUP-based claims are moot, though we note that the Supreme Court has cautioned against finding a claim moot where a party ends the challenged, allegedly illegal conduct after the filing of a lawsuit, unless it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222, 120 S.Ct. 722, 145 L.Ed.2d 650 (2000) (emphasis in original, internal quotation marks omitted); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (same). . SUWA specifically challenges a 1990 environmental assessment (EA) for the Henry Mountains area, a 1991 EIS for the San Rafael Swell area, a 1980 EA for the Parunuweap area, a 1985 EA for the Behind the Rocks area, and a 1991 EIS for the Indian Creek area. . The standard for preparing a supplemental EA is the same as for preparing an SEIS. See Idaho Sporting Cong., Inc. v. Alexander, 222 F.3d at 566 & n. 2 (9th Cir.2000); Friends of the Bow, 124 F.3d at 1218 & n. 3. . The requirement that the agency's obligation be ministerial in nature has also been expressed as a requirement that the agency's obligation be “a plainly defined and preemptory duty.” Hadley Mem’l Hosp., Inc. v. Schweiker, 689 F.2d 905, 912 (10th Cir.1982) (citations omitted). The BLM's nonimpairment obligation simply cannot be viewed as either ministerial or a plainly defined and preemptory duty.

Southern Utah Wilderness Alliance v. Norton

McKAY, Circuit Judge, concurring in part and dissenting in part: While I concur in the result reached by the majority as to Appellants’ NEPA claim, I respectfully dissent in all other respects. I. Misconstruing the BLM’s Nonimpairment Obligation The court’s failure to follow well-established precedent which mandates that we determine the scope of § 706(1) jurisdiction by a mandamus standard leads to its unwarranted conclusion that any mandatory agency obligation is amenable to attack pursuant to § 706(1) of the APA. Maj. op. at 1224. The majority opinion does not, and cannot, cite a single case from any court justifying this novel proposition. Our ability to grant injunctive relief under § 706(1) is governed by a standard similar to the one used in evaluating requests for mandamus relief. See Mount Emmons Mining Co. v. Babbitt, 117 F.3d 1167, 1170 (10th Cir.1997); Independence Mining Co., Inc. v. Babbitt, 105 F.3d 502, 507 (9th Cir.1997). “Mandamus relief is an appropriate remedy to compel an administrative agency to act where it has failed to perform a nondiscretionary, ministerial duty.” Marathon Oil Co. v. Lujan, 937 F.2d 498, 500 (10th Cir.1991) (citations omitted) (emphasis added). In § 706(1) actions, plaintiffs must demonstrate either “agency recalcitrance [ ] in the face of [a] clear statutory duty[, or agency recalcitrance] ‘of such a magnitude that it amounts to an abdication of statutory responsibility....’” ONRC Action v. BLM, 150 F.3d 1132, 1137 (quoting Public Citizen Health Research Group v. Comm’r, Food & Drug Admin., 740 F.2d 21, 32 (D.C.Cir.1984)). I agree with the majority that BLM’s FLPMA obligation is both mandatory and continuous. This observation, however, reveals but a portion of Appellees’ burden in establishing jurisdiction pursuant to § 706(1). Because we employ a mandamus standard when evaluating § 706(1) jurisdiction, § 706(1) plaintiffs must also prove that they are challenging a ministerial agency obligation. See Marathon Oil, 937 F.2d at 500. Ministerial is defined as “an act that a person after ascertaining the existence of a specified state of facts performs in obedience to a mandate of legal authority without the exercise of personal judgment upon the propriety of the act and usually without discretion in its performance.” Webster’s Third New Int’l Dictionary (1986) (emphasis added). The BLM’s nonimpairment FLPMA obligation is not remotely ministerial. The majority concedes the well-settled rule that the propriety of jurisdiction pursuant to § 706(1) must be determined in accordance with our mandamus jurisprudence. Maj. op. at 1226, n. 6. The majority also concedes that the BLM’s nonimpairment obligation is generally stated and involves a substantial amount of discretion in the manner in which the BLM meets its obligation. Id. at 1227. Despite conceding the very points that establish the fact that the BLM’s FLPMA nonimpairment duty is not ministerial is nature, the majority’s opinion nonetheless maintains that Appellants may challenge the BLM’s alleged failure to meet its nonimpairment obligation pursuant to § 706(l)’s provisions. Despite recognizing, as it must, that § 706(1) jurisdiction is properly analyzed under our mandamus jurisprudence, the thrust of the majority’s position is that any mandatory duty, regardless of how generally stated and regardless of the amount of discretion given to the agency in the performance of its duty, is challengeable pursuant to § 706(1). Additionally, the majority in no way limits its novel interpretation of § 706(1) jurisdiction to the environmental field. Apparently, as set out in the majority opinion, any mandatory obligation of any United States agency could be challenged using § 706(1) as a jurisdictional basis. The majority’s position ignores reality by placing all agency obligations, regardless of the discretion granted to the agency in carrying out the particular obligation, into one category — mandatory obligations. Statutory directives by their nature are mandatory. I have yet to discover a single statute indicating that an agency’s obligation is anything other than mandatory. The reality is that the various mandatory obligations given to agencies are properly viewed on a continuum. On one end are agency obligations that are programmatic in nature, i.e., the BLM’s nonimpairment duty. The other end of the continuum represents discrete tasks the agency must perform in order to carry out a portion of its overall duties, i.e., processing a mineral application. The latter are properly chal-lengeable pursuant to § 706(1); the former are not. The majority’s position directly contradicts the Supreme Court’s mandate that review under the APA is strictly reserved for cases addressing specific instances of agency action or inaction rather than programmatic attacks. See Lujan v. National Wildlife Fed’n, 497 U.S. 871, 891-94, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Plaintiffs “cannot seek wholesale improvement of [an agency] program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made.” Id. at 891, 110 S.Ct. 3177 (emphasis in original). In sum, § 706(1) of the APA cannot be used as a jurisdictional vehicle for claims challenging an agency’s overall method of administration or for controlling the agency’s day-to-day activities. The problem with the majority’s position is revealed through the use of a simple example. The Immigration and Naturalization Service has a mandatory, ongoing, and continuous obligation to “enforce the Immigration and Nationality Act and all other laws relating to the immigration and naturalization of aliens.” 8 C.F.R. § 2.1 (2002). Applying the court’s apparent conclusion that any mandatory duty can be challenged pursuant to § 706(1), the failure of the INS to enforce the immigration laws could be properly challenged pursuant to § 706(1). Thus, any individual unhappy with the INS’ efforts to prevent the entry of all illegal aliens (despite the laws prohibiting the entry of illegal aliens and the INS’ duty to enforce these laws) could bring a lawsuit pursuant to § 706(1) for the INS’ “failure to act.” Despite our prior case law holding to the contrary, nothing in the majority opinion would constrain the granting of a writ of mandamus ordering the INS to enforce the immigration laws. See, e.g., Smith v. Plati, 258 F.3d 1167, 1179 (10th Cir.2001) (mandamus “not ordinarily granted to compel police officers to enforce the criminal laws”) (quotation omitted). The majority’s novel interpretation of § 706(l)’s jurisdictional scope permits exactly this incongruous result. This expanded view of § 706(1) jurisdiction becomes even more apparent when considering the potential remedies available to plaintiffs challenging any mandatory agency obligation. Our prior cases reveal that when we grant a writ of mandamus, the remedy provided within the writ guarantees correction of the error petitioner claimed in the first instance. The writ’s ability to correct the problem complained of necessarily requires that the duty challenged be ministerial in nature. See, e.g., Hulsey v. West, 966 F.2d 579, 582-83 (10th Cir.1992) (mandamus granted ordering the district court to ensure petitioner’s right to jury trial); McNeil v. Guthrie, 945 F.2d 1163, 1168 (10th Cir.1991) (mandamus granted requiring district court clerk to file pro se papers in class action suit); Journal Publ’g. Co. v. Mechem, 801 F.2d 1233, 1237 (10th Cir.1986) (mandamus writ issued ordering district court to dissolve previous order regarding press contact with jury pool that was over broad); Hustler Magazine, Inc. v. United States Dist. Court, 790 F.2d 69, 71 (10th Cir.1986) (mandamus writ issued requiring district court to conduct a “full and adequate hearing” regarding motion to change venue); Herrera v. Payne, 673 F.2d 307, 308 (10th Cir.1982) (mandamus writ issued compelling district court to attach statement of reasons in order denying a certificate of probable cause as required by Fed. R.App. P. 22(b)). A similar result occurs when a remedy is granted in a suit brought against agencies for a failure to act pursuant to § 706(1). See, e.g., Forest Guardians v. Babbitt, 174 F.3d 1178, 1192 (10th Cir.1999) (compelling agency to designate a critical habitat for the silvery minnow); Yu v. Brown, 36 F.Supp.2d 922, 931 (D.N.M.1999) (compelling INS to process plaintiffs application for special immigrant juvenile status). On remand, I can think of no remedy the district court could construct that would guarantee a correction of the agency failure alleged in the first instance — BLM’s full compliance with its nonimpairment duty. At most and at worst, the remedy granted would involve the district court in the ongoing review of every management decision allegedly threatening achievement of the nonimpairment mandate. Quite simply, even if ORV use was entirely banned inside WSAs, the BLM’s compliance with such a remedy still would not guarantee that the WSAs would not be impaired in the future. The majority’s opinion essentially transforms § 706(1) into an improper and powerful jurisdictional vehicle to make programmatic attacks on day-to-day agency operations. The Supreme Court has specifically rejected this approach. See National Wildlife Fed’n, 497 U.S. at 894, 110 S.Ct. 3177 (APA improper method of making programmatic attacks on agency obligations). II. Unwarranted Expansion of “Failure to Act” In addition to an unwarranted expansion of § 706(1) threshold jurisdiction, the majority opinion compounds its error by improperly expanding the definition of § 706(l)’s failure to act requirement to include not only true agency inaction but also all agency action which falls short of completely achieving the agency’s obligations. This unique interpretation of “failure to act” incorrectly conflates the concepts of action and achievement. Once again, I do not dispute that the BLM must comply with its nonimpairment mandate and must manage WSAs in a manner that prevents impairment. For § 706(1) jurisdictional purposes, however, this is not the issue. Instead, the issue is whether Appellants may use § 706(1) to challenge an agency’s failure to completely comply with its obligations as a “failure to act.” The facts in this case do not support such a conclusion. Because nearly every objection to agency action could be cleverly pleaded as agency inaction, § 706(1) jurisdiction exists “only when there has been a genuine failure to act.” Ecology Ctr., Inc. v. United States Forest Serv., 192 F.3d 922, 926 (9th Cir.1999); see also Public Citizen v. Nuclear Regulatory Comm’n, 845 F.2d 1105, 1108 (D.C.Cir.1988) (emphasis added). Complaints about the sufficiency of agency action disguised as failure to act claims are not cognizable pursuant to § 706(1). See Sierra Club v. Peterson, 228 F.3d 559, 568 (5th Cir.2000); Ecology Ctr., 192 F.3d at 926; Nevada v. Watkins, 939 F.2d 710, 714 n. 11 (9th Cir.1991). The majority’s summation of Appellants’ claims reveals the true nature of Appellants’ complaint — -insufficiency of agency action disguised as a failure to act claim. Appellants assert that the BLM is “not properly managing off-road vehicle and/or off-highway (collectively ORV) use on federal lands that had been classified by the BLM as Wilderness Study Areas.” Maj. op. at 1227. Appellants’ objections are not based upon a true failure to act; instead, they address an alleged failure of the BLM to achieve complete success in its efforts to comply with the BLM’s nonimpairment obligation. Section 706(1) is unquestionably an inappropriate jurisdictional basis for such claims. See, e.g., Sierra Club, 228 F.3d at 568; Ecology Ctr., 192 F.3d at 926; Watkins, 939 F.2d at 714. The majority’s assertion that an “agency’s attempted compliance is[n’t] totally irrelevant to § 706(1) proceedings” misses the mark completely. Maj. op. at 1232, n. 14. Not only is an agency’s attempted compliance “not totally irrelevant,” it is the essential inquiry in determining whether § 706(1) jurisdiction can be properly invoked. I reiterate that § 706(1) jurisdiction is proper only when a plaintiff alleges a true failure to act. Sierra Club, 228 F.3d at 568; Ecology Ctr., 192 F.3d at 926. The majority maintains that any action taken by an agency that does not result in complete success in the carrying out of mandatory obligations is properly chal-lengeable as a failure to act. The burden properly placed on § 706(1) plaintiffs is much more rigorous than that. Plaintiffs must prove a failure of an agency to take any action reasonably calculated to achieve the ends of its mandate. It is unrealistic to expect that every agency action taken in good faith will be completely successful. It is even wider of the mark to label good faith agency efforts that fall short of complete success as “failures to act.” III. Creating a New Agency Obligation The court’s improper disposition of Appellants’ land use plan claim is due in part to its erroneous view of the scope of § 706(1) jurisdiction and in part to its creation of a new agency obligation that before today the BLM did not possess. Statutorily, BLM’s obligation is to manage its lands “in accordance with the land use plans.” 43 U.S.C. § 1732(a) (1986). Additionally, 43 C.F.R. § 1610.5-3(a) (2001) states that “[a]ll future resource management authorizations and actions ... and subsequent more detailed or specific planning! ] shall conform to the approved plan.” The court asserts that once the BLM develops a land use plan it is required to achieve every single aspect of that plan. It accepts Appellants’ argument that allowing the BLM to ignore the affirmative management provisions in its own plans will “make a charade of the BLM land planning, public participation, and NEPA processes.” Aplt. Br. at 43. The effect of the majority’s opinion is that any failure (regardless of how small) to live up to every aspiration expressed in the BLM’s land management plans would entitle Appellants to challenge such failure pursuant to § 706(1). Correctly viewed, however, the BLM’s land plans are aspirational. While the BLM is prevented from approving or undertaking affirmative projects inconsistent with its land use plans, the BLM is not required to meet each and every specific goal set forth in its land use plans or face potential litigation jurisdictionally based on § 706(1) for failing to act. Affirmative projects or final agency decisions inconsistent with land use plans are properly challenged as final agency actions, not as failures to act. Importantly, successful challenges to land use plans have only involved final agency decisions made pursuant to existing land use plans. See, e.g., Neighbors of Cuddy Mountain v. United States Forest Serv., 137 F.3d 1372, 1376, 1382 (9th Cir.1998) (remanding approval of a timber sale not in conformity with forest plan); Oregon Natural Res. Council Action v. United States Forest Serv., 59 F.Supp.2d 1085, 1097 (W.D.Wa.1999) (enjoining timber sale approved before completion of wildlife survey as required by the management plan). I was unable to locate a single ease supporting the majority’s view. The court’s position is belied by the stated purpose of resource management planning, which is to provide “a process for the development, approval, maintenance, amendment and revision of resource management plans.” 43 C.F.R. § 1601.0-1 (2001) (emphasis added). Thus, the regulations envision plans that are dynamic, flexible,' and that properly balance the competing objectives of the various groups interested in public lands. Requiring an agency to meet every one of its original aspirational objectives denies the intended nature of resource planning. Inherent in the process is the understanding that even well-intended objectives may prove unfruitful in obtaining desired results. Necessarily, a change in approach will be warranted on occasion. Permitting plaintiffs to challenge a land use plan under the guise of a failure to act because each and every objective of the land use plan has not been met would allow plaintiffs of all varieties to substantially impede an agency’s day-to-day operations. The Supreme Court has specifically rejected this notion. National Wildlife Fed’n, 497 U.S. at 894, 110 S.Ct. 3177 (courts are not the correct place to make programmatic attacks on agencies). The district court concluded that the BLM’s obligation on its face is “limited only to affirmative projects either approved or undertaken after the [Resource Management Plan] is in place; it does not require that further planning activities contemplated by the plan actually take place.” Aplt.App. at 865. I agree. The regulations specifically grant a right to challenge an agency decision or amendment that violates a plan’s provision. “Any person adversely affected by a specific action being proposed to implement some portion of a resource management plan or amendment may appeal such action pursuant to 43 CFR 4.400 at the time the action is proposed for implementation.” 43 C.F.R. § 1610.5 — 3(b) (2001) (emphasis added). The regulations tellingly contain no reference of any kind to the rights of an individual to challenge an agency’s failure to meet each and every goal set forth in its land use plans. I have found absolutely no legal support for the proposition that failure to attain all of the goals of a land use plan can properly be challenged pursuant to § 706(1), nor does the majority opinion cite any. It seems odd to me that, if a plaintiff could properly challenge an agency’s failure to reach all of its objectives in its land use plans pursuant to § 706(1), not a single plaintiff has ever prevailed in any court on such a theory. Today the court permits Appellants to potentially proceed on a land management plan claim based upon a previously nonexistent agency obligation. IV. Consequences of the Majority’s Approach The unwarranted and unsupported decision to judicially expand § 706(1) jurisdiction in a way never envisioned by any other court or Congress and the creation of a previously unrecognized agency obligation might be more palatable if the end result of the endeavor promised significant public policy benefits. Unfortunately, I am convinced that the opposite is true. Instead of assisting agencies in the laudable goal of preserving our nation’s precious environmental resources, the effect of the court’s decision will likely make the successful protection of our environment even more difficult. Perhaps the most obvious consequence of this expansion of § 706(l)’s scope is the future syphoning of scarce BLM (and other agencies’) resources intended to meet its worthy objectives and obligations to fund increasing unmerited litigation. However narrowly intended, the court’s opinion has opened the floodgates of litigation for plaintiffs to challenge any mandatory agency obligation regardless of the amount of discretion afforded to the agency in carrying out its obligations. Additionally, today’s decision turns the burden of proving jurisdiction on its head. It is well accepted that the burden of proving jurisdiction is properly placed on the party invoking jurisdiction (plaintiffs). See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (citation omitted). Instead, today’s decision requires agency defendants to now prove not only that they have acted but also that their actions have been completely successful, rather than properly placing the burden on plaintiffs to prove an agency’s true failure to act. The additional problem with the court’s unique view of § 706(l)’s jurisdictional scope is that it is not amenable to reasonable judicial standards. For example, there is no standard as to the proper time when a plaintiff may challenge an agency’s failure to comply one hundred percent with a statutory obligation. If an agency’s obligation is viewed as mandatory, continuous, and immediate, nothing here prevents a plaintiff from challenging an agency’s failure to successfully and completely comply with its statutory obligation the very next day. This unmanageable approach to § 706(1) jurisdiction shifts to the court what amounts to day-to-day supervision of the level of goal achievement under any agency’s plan. In addition to encouraging increasing amounts of unmerited litigation, the logical consequence of this greatly expanded jurisdiction is the creation of ineffective and passive land use plans. If an agency can be forced into litigation for any failure to completely achieve the goals it sets for itself in its desire to reach or exceed its statutory obligation, the agency’s likely reaction will be to adopt land use plans that are little more than ambiguous and general restatements of the agency s obligations in the first instance. Such a result would severely constrain an agency’s ability to use its expertise and discretion to protect the environment and would hinder the aggressive and successful management of the WSAs that all parties desire. In sum, I am of the view that the court today has embraced three novel concepts: 1) the BLM’s nonimpairment obligation is a ministerial duty subject to attack pursuant to § 706(1); 2) any failure of the BLM (no matter how slight) may provide jurisdiction for a “failure to act” challenge pursuant to § 706(1); and 3) the BLM’s (and other agencies’) failure to achieve each and every aspiration of its land use plans with completely successful results opens it to potential litigation for “failing to act.” IV. Conclusion Because I view the BLM’s nonimpairment obligation pursuant to FLPMA as nonministerial in nature and since only ministerial agency duties are properly subject to attack pursuant to § 706(l)’s provisions, I would affirm the district court’s decision to dismiss this claim for lack of jurisdiction. See Marathon Oil, 937 F.2d at 500. I would also affirm the district court’s decision to dismiss Appellants’ land use plan claim because that claim is based on a non-existent duty. The BLM simply is not required to achieve each and every goal of its aspirational land use plans or have that failure, however slight, be challenged pursuant to § 706(1). Appellants are not without remedy; but, on the facts of this case, Congress has limited the remedy to that provided by § 706(1). Thus, I do concur with the result the majority reaches in remanding Appellants’ NEPA claim to determine whether the BLM has truly failed “to take a ‘hard look’ at information suggesting that ORV use has substantially increased since the NEPA studies for the disputed areas were issued.” Mai. op. at 1237. . The Supreme Court observed that [t]he case-by-case approach ... require[d] is understandably frustrating to an organization such as respondent, which has as its objective across-the-board protection of our Nation's wildlife.. .. But this is the traditional, and remains the normal, mode of operation of the courts.... Assuredly[, it is] not as swift or as immediately far-reaching a corrective process as those interested in systematic improvement would desire. Until confided to us, however, more sweeping actions are for the other branches. National Wildlife Fed'n, 497 U.S. at 894, 110 S.Ct. 3177. "Courts are not equipped, nor are they the proper body, to resolve the technical issues involved in agency decisionmak-ing at 'a higher level of generality.’ " Sierra Club v. Peterson, 228 F.3d 559, 569 (5th Cir.2000) (citing National Wildlife Fed’n, 497 U.S. at 894, 110 S.Ct. 3177). Few, if any, of the BLM's obligations are expressed at a higher level of generality than the BLM’s nonimpairment duty pursuant to FLPMA. . There are a host of mandatory, ongoing, continuous agency obligations that are now subject to attack pursuant to the majority’s view of § 706(1) jurisdiction. Another example is the Fish and Wildlife Service's obligation to utilize its authority to “seek to conserve endangered species and threatened species.” See 16 U.S.C. § 1531(c)(1) (2000) (declaring Congress' policy that all federal departments and agencies have an obligation to protect endangered species). The majority offers no explanation to differentiate the mandatory, ongoing, and continuous nature of such agency obligations from the BLM's nonimpairment obligation established by FLPMA. Thus, the majority's view of § 706(1) exposes agencies to attack by plaintiffs who believe that the INS is not properly enforcing all of the immigration laws or that the Fish and Wildlife Service is not sufficiently utilizing its authority to seek and conserve endangered species. Rather than preserve our WSAs (or ensure the INS enforces all of the immigration laws or that the Fish and Wildlife Service utilizes its authority to conserve endangered species) the majority’s view of § 706(1) jurisdiction improperly permits plaintiffs unsatisfied with the day-to-day operations of various government agencies to attempt to control these operations through litigation. . The example in footnote twelve of the majority opinion has no application to this case. It assumes that the BLM is either acting in bad faith or taking final agency action inconsistent with its statutory mandate. I agree that bad faith attempts to comply with an agency’s obligations is equivalent to no action at all. However, in the present case no one alleges that the BLM is acting in bad faith. In order to log on BLM lands, permits are required. Assuming that the land had been set aside for activities other than logging (as the majority does), granting a logging permit would represent a final agency action properly challengeable pursuant to the APA as a final agency decision. See 5 U.S.C. § 704 (1996). Section 704, not § 706(1), would provide the proper jurisdictional basis for such a challenge.

Newton County Wildlife Ass'n v. Rogers

LOKEN, Circuit Judge. Newton County Wildlife Association, the Sierra Club, and certain individuals (collectively “the Wildlife Association”) sued the United States Forest Service and four of its employees (collectively the “Forest Service”) to enjoin or set aside four timber sales in the Ozark National Forest. The district court denied a preliminarily injunction under the Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271, et seq., or the Migratory Bird Treaty Act, 16 U.S.C. §§ 703 et seq., and we affirmed. Newton County Wildlife Ass’n v. United States Forest Service, 113 F.3d 110 (8th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1035, 140 L.Ed.2d 102 (1998). The Wildlife Association now appeals the district court’s decision to limit its review to the administrative record, Newton County Wildlife Ass’n v. Rogers, 948 F.Supp. 50 (E.D.Ark.1996), and its subsequent grant of summary judgment in favor of the Forest Service. We affirm. I. Background. The Forest Service manages the national forests for “outdoor recreation, range, timber, watershed, and wildlife and fish purposes.” 16 U.S.C. § 528. The National Forest Management Act, 16 U.S.C. §§ 1600, et seq. (“NFMA”), requires the Forest Service to develop Land and Resource Management Plans (“Forest Plans”) for the management of national forests. See 16 U.S.C. § 1604. Individual projects, including timber sales, are assessed in light of the Forest Plan. See 16 U.S.C. § 1604(i); Sierra Club v. Robertson, 28 F.3d 753, 755 (8th Cir.1994). The Forest Service issued a ten-year Forest Plan for the 1,118,500-acre Ozark National Forest in 1986. The Plan was accompanied by an Environmental Impact Statement (“EIS”) analyzing the environmental consequences of timber sales, including the impact of harvesting and road construction on water quality, wildlife and fish, wilderness areas, and threatened, endangered, and sensitive wildlife and plant species. In the early 1990’s, the Forest Service proposed four timber sales in “general” areas of the Buffalo Ranger District (areas administered under the Plan to yield a high level of timber). The proposed sales—Sand Gap, Round Hill, Junction, and Sandy Springs— involve timber harvesting on a total of 3,011 acres of forest and require 13.64 miles of logging road reconstruction and 5.08 miles of new road. For each proposed sale, the Forest Service mailed notices to affected and interested members of the public, including the Wildlife Association, describing the proposal and soliciting comments. After receiving responses, the Forest Service studied site-specific environmental effects and developed Environmental Assessments (“EAs”) evaluating the environmental impacts of various sale alternatives, including the “no action” alternative. Biological evaluations were prepared analyzing likely effects on species known to inhabit the Forest. The District Ranger circulated the EAs with requests for public comment prior to issuing Decision Notices. The Forest Service issued Decision Notices for Sand Gap and Round Hill on May 27, 1994. Administrative appeals were rejected by September 1994, and the sales took place that fall. Purchasers commenced road construction and logging in the spring of 1995. The Forest Service issued Decision Notices for Junction and Sandy Springs on June 19 and May 22, 1995, and rejected administrative appeals in the fall of 1995. The Wildlife Association filed this lawsuit on December 20, 1995. The second amended complaint alleges that plaintiffs “seek judicial review of final agency action in approving” the four timber sales. Counsel for the Forest Service advised at oral argument that approximately three-fourths of road work and timber harvesting in the four sale areas is now completed. The Forest Service approved the timber sales acting under NFMA. That Act “provides the mechanism for obtaining judicial review.” See Defenders of Wildlife v. Administrator, E.P.A., 882 F.2d 1294, 1303 (8th Cir.1989). Though the Wildlife Association argues that the timber sales violate no less than six substantive federal statutes, it persistently fails to relate those arguments to the standard for judicial review set forth in the Administrative Procedure Act, which provides that this type of final agency action may be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414-15, 91 S.Ct. 814, 822-23, 28 L.Ed.2d 136 (1971); 5 U.S.C. § 706(2)(A). Thus, we deal here primarily with a single cause of action for APA review—not, as the Wildlife Association pleaded, with multiple statutory claims for relief. II. The Record on Review. APA review of agency action is normally confined to the agency’s administrative record. See Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). If the agency record is for some reason inadequate, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation.” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643 (1985). When as here there is a contemporaneous administrative record and no need for additional explanation of the agency decision, “there must be a strong showing of bad faith or improper behavior” before the reviewing court may permit discovery and evidentiary supplementation of the administrative record. Overton Park, 401 U.S. at 420, 91 S.Ct. at 825-26; see Cronin v. United States Dep’t of Agrie., 919 F.2d 439, 444 (7th Cir.1990); Maxey v. Kadrovach, 890 F.2d 73, 77 (8th Cir.1989), cert. denied, 495 U.S. 933, 110 S.Ct. 2176, 109 L.Ed.2d 505 (1990). We conclude the district court did not abuse its discretion by conducting its judicial review on the voluminous administrative record compiled by the Forest Service for the four timber sales. See Missouri Coalition for the Env’t v. Corps of Engineers, 866 F.2d 1025, 1031 (8th Cir.) (standard of review), cert. denied, 493 U.S. 820, 110 S.Ct. 76, 107 L.Ed.2d 42 (1989). The court properly excluded the Wildlife Association’s voluminous evidence concerning post-sale logging and road construction because its lawsuit challenges the Forest Service’s timber sales decisions, not post-sale activities implementing the sales. On appeal, the Wildlife Association argues this evidence should be admitted by the reviewing court under the bad faith exception to record review because of the discrepancy between the actual logging and road construction taking place, and the environmentally less damaging activity studied in the pre-sale Environmental Assessments (an asserted discrepancy the agency emphatically denies). Like the district court, we find this threshold showing of bad faith woefully inadequate to justify going outside the administrative record. The Wildlife Association further argues that it must be allowed to go outside the agency record to demonstrate that the Forest Service violated its duty under the National Environmental Policy Act (“NEPA”) to consider all relevant environmental factors. See 42 U.S.C. § 4332. We need not decide whether to adopt the Second Circuit’s view that courts should be more willing to go outside the administrative record in considering NEPA challenges. See National Audubon Soc’y v. Hoffman, 132 F.3d 7, 14-16 (2d Cir.1997); County of Suffolk v. Secretary of the Interior, 562 F.2d 1368, 1384-85 (2d Cir.1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978). Here, the Wildlife Association wishes to supplement the record with evidence of post-sale implementation activity, information that was not available to the Forest Service when it prepared the Environmental Assessments. As we said in Lockhart v. Kenops, 927 F.2d 1028, 1036 (8th Cir.), cert. denied, 502 U.S. 863, 112 S.Ct. 186, 116 L.Ed.2d 148 (1991): This court’s task is to make sure the Forest Service considered the information available at the time it made its decision; if the agency’s decision was proper at the time it was made, our inquiry is at an end. Accord Roanoke River Basin Ass’n v. Hudson, 940 F.2d 58, 63-64 (4th Cir.1991), cert. denied, 502 U.S. 1092, 112 S.Ct. 1164, 117 L.Ed.2d 411 (1992). To the extent the Wildlife Association’s extra-record proffers consisted of expert opinions and studies analyzing environmental impacts and conditions known prior to the sales, the Association failed to provide adequate justification for its failure to present those materials to the agency during its decision-making' process. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 553-54, 98 S.Ct. 1197, 1216-17, 55 L.Ed.2d 460 (1978). Finally, the Wildlife Association argues that it should be entitled to go outside the administrative record because it has invoked the citizen-suit provisions of thé Endangered Species Act, 16 U.S.C. § 1540(g)(1) (“ESA”), and the Clean Water Act, 33 U.S.C. § 1365(a)(1). We disagree. These statutes provide for judicial review but do not prescribe a standard for that review. “[Wjhere Congress has simply provided for review, without setting forth the standards to be used or the procedures to be followed, this Court has held that consideration is to be confined to the administrative record and that no de novo proceeding may be held.” United States v. Carlo Bianchi & Co., 373 U.S. 709, 715, 83 S.Ct. 1409, 1413, 10 L.Ed.2d 652 (1963); see Cabinet Mountains Wilderness/Scotchman’s Peak Grizzly Bears v. Peterson, 685 F.2d 678, 685-86 (D.C.Cir.1982). III. The Merits. A Wild & Scenic Rivers Act. WSRA requires federal agencies responsible for land adjacent to designated river components to protect designated rivers, with “particular attention” paid to “scheduled timber harvesting, road construction, and similar activities which might be contrary to the purposes of this chapter.” 16 U.S.C. § 1283(a). In our prior opinion, we noted that “the Forest Service may well have WSRA compliance obligations in approving timber sales (an issue not before us).” 113 F.3d at 112-13. On this appeal, the Wildlife Association argues that the timber sales violate the Forest Service’s WSRA duties to protect the water quality of designated segments of the Buffalo River and Richland Creek, and to “cooperate with the Secretary of the Interior and with the appropriate State water pollution control agencies for the purpose of eliminating or diminishing the pollution of waters of the river.” 16 U.S.C. § 1283(c). The Wildlife Association points to nothing in the administrative record establishing that the Forest Service acted arbitrarily and capriciously in finding that logging and road work will have an insignificant effect on WSRA-designated river components. The EAs thoroughly discuss the impact of the sales on water quality of the Buffalo River and Richland Creek and call for mitigation measures designed to protect affected waters. We reject the Wildlife Association’s contention that the Forest Service failed to cooperate with state water pollution control agencies simply because the Arkansas Department of Pollution Control and Ecology and the Arkansas Natural and Scenic Rivers Commission opposed the sales. The record reflects that the Forest Service considered the State’s objections even though they were not expressed until after the comment period ended. B. National Forest Management Act. The Wildlife Association argues that the timber sales are inconsistent with 1991 amendments to the Forest Plan and EIS for the Ozark National Forest because the Forest Service (1) failed to timely make available an inventory map of all forest roads with their management objectives; (2) failed to designate “Special Interest” areas; (3) increased net logging road mileage within the Forest; and (4) authorized road construction and logging within 198 feet of the Highlands Trail. None of these relatively insignificant issues comes close to establishing that approval of the sales was arbitrary or capricious. For example, the Forest Service explains that the Forest Plan’s requirement of no net increase in logging roads is a forest-wide concept, and the four sales in question involve less than ten miles of new road and reconstruction of less than twenty miles of road. C. National Environmental Policy Act. NEPA requires all federal agencies, including the Forest Service, to prepare an EIS for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Council on Environmental Quality regulations provide that an agency may prepare an EA to determine whether an action significantly affects the environment. If the agency determines based upon the EA not to prepare an EIS, it makes and publishes a finding of no significant impact, or “FONSI.” See 40 C.F.R. § 1501.4. An EA is a “rough- cut, low-budget environmental impact statement designed to show whether a full-fledged environmental impact statement ... is necessary.” Cronin, 919 F.2d at 443. If an agency has prepared an EIS for a large action, the regulations encourage it to incorporate EIS conclusions into EAs prepared for smaller, subsequent actions included within the broad program. See 40 C.F.R. § 1502.20. In this case, the Forest Service prepared an EIS for the broad Forest Plan and EAs for the four timber sales. The Wildlife Association argues that the Forest Service violated NEPA by not preparing an EIS for the timber sales. It further contends that the four EAs failed to analyze the cumulative effects of the sales on watershed resources, fish, and wildlife. We “must affirm if we find the Service took a ‘hard look’ at the project, identified the relevant areas of environmental concern, and made a convincing statement for its FONSI.” Sierra Club v. United States Forest Service, 46 F.3d 835, 838-39 (8th Cir.1995). The Forest Plan EIS considered cumulative impacts and forest management issues for the Ozark National Forest as a whole. Each timber sale EA is over one hundred pages long and is “tiered” to the Forest Plan EIS, consistent with the policy behind 40 C.F.R. § 1502.20 to save money and time by avoiding repetitive inquiries. While the EAs do not cross reference each other, each expressly addresses cumulative environment impacts. The EAs study areas significantly larger than the area to be logged; for example, the Sandy Springs sale involves 1,871 acres, but its EA considers environmental impacts on 26,699 acres. An “EA cannot be both concise and brief and provide detailed answers for every question.” Sierra Club, 46 F.3d at 840. Recognizing that federal agencies must study cumulative environmental impacts and prepare comprehensive EIS’s when appropriate, we conclude the Forest Service’s EAs were not arbitrary or capricious compliance with its NEPA obligations in making these timber sale decisions. See Kleppe v. Sierra Club, 427 U.S. 390, 410-14, 96 S.Ct. 2718, 2730-32, 49 L.Ed.2d 576 (1976). D. Clean Water Act. The Wildlife Association argues the Forest Service failed to obtain necessary NPDES and dredge and fill permits for the discharges of pollutants that will accompany logging and road construction under the timber sales. See 33 U.S.C. §§ 1311(a), 1344. These contentions are without merit. The Wildlife Association cites no authority for the proposition that the Forest Service needs an NPDES permit before contracting to allow others to harvest timber and build roads. The Environmental Protection Agency, which administers the NPDES permit program, has not intervened to support this contention, and EPA’s regulations expressly provide, “it is the operator’s duty to obtain a permit.” 40 C.F.R. § 122.21(b). Moreover, EPA regulations do not include the logging and road building activities cited by the Wildlife Association in the narrow list of silvicultural activities that are point sources requiring NPDES permits. See 33 U.S.C. §§ 1311(a), 1342(a), 1362(12), (14); 40 C.F.R. § 122.27(b)(1); 41 Fed.Reg. 24709, 24710 (June 18, 1976). Similarly, logging and associated road building are exempt from dredge and fill permit requirements so long as construction and maintenance comply with best management practices. See 33 U.S.C. §§ 1344(f)(1)(A); 1344(f)(1)(E). The administrative record contains no evidence those practices have not been followed. The Wildlife Association next argues that the timber sales are contrary to the State of Arkansas antidegradation policy and therefore violate the Clean Water Act. See 33 U.S.C. § 1323(a). Assuming without deciding that compliance with a state antidegradation policy is a legitimate inquiry on APA review of this type of agency action, we conclude the Arkansas statewide policy for nonpoint sources is so broadly stated that the Forest Service was not arbitrary or capricious in concluding this policy added nothing to its compliance obligations under federal environmental laws. E. Wilderness Act. The Wilderness Act of 1964 makes agencies that administer wilderness areas responsible for preserving their wilderness character. See 16 U.S.C. § 1133(b). The Arkansas Wilderness Act of 1984 designated parts of the Ozark National Forest as wilderness areas. See Pub.L. No. 98-508, 98 Stat. 2349 (1984). Although the four timber sales are not located within wilderness areas, the Wildlife Association argues that the sales violate the Wilderness Act because the logging activities are upstream and will degrade the quality of Buffalo River and Richland Creek waters flowing through designated wilderness areas. The district court rejected this argument based upon Section 7 of the Arkansas Wilderness Act, which disclaims any congressional intent to create “protective perimeters or buffer zones around each wilderness area.” 98 Stat. at 2352. We agree. If the Forest Service prohibited an activity outside a wilderness area “solely because of its potential effect on the Wilderness area,” that prohibition would violate Section 7. Northwest Motorcycle Ass’n v. United States Dep’t of Agrie., 18 F.3d 1468, 1480 (9th Cir.1994). Moreover, the Forest Service thoroughly considered the effect of logging and road construction on the water quality of the Buffalo River and its tributaries, including Rich-land Creek, concluding that with mitigation measures and best management practices the impact on water quality would be insignificant. The Wildlife Association points to nothing in the administrative record establishing that this analysis was arbitrary or capricious. F. Endangered Species Act. The Endangered Species Act requires federal agencies to consult with the appropriate federal fish and -wildlife agency when their actions “may affect” an endangered or threatened species. See 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a). The Wildlife Association argues the Forest Service was arbitrary and capricious in approving the sales before the United States Fish and Wildlife Service determined whether the logging might significantly affect any listed species. The Forest Service prepared a detailed biological “evaluation” for each sale and found there was no effect on any listed or endangered species. A finding of no effect obviates the need for consultation with the Fish and Wildlife Service. See 50 C.F.R. § 402.14; Southwest Center for Biological Diversity v. United States Forest Service, 100 F.3d 1443, 1447 (9th Cir.1996). The Wildlife Association argues the Forest Service was required to prepare biological “assessments” to decide whether to consult with the Fish and Wildlife Service. See 16 U.S.C. § 1536(e). However, a biological assessment is only required for “major construction activities.” 50 C.F.R. § 402.12. Finally, the Wildlife Association argues the Forest Service failed to make an adequate assessment of whether the sales would affect the bald eagle. However, the biological evaluations and the EAs specifically considered impacts on the bald eagle and its habitat and determined that the sales would have no effect. Accordingly, nothing in the administrative record establishes that the Forest Service was arbitrary or capricious in carrying out its ESA obligations regarding these sales. We have carefully considered all other arguments made by the Wildlife Association and conclude they are without merit. The judgment of the district court is affirmed. As the Wildlife Association is not a prevailing party, its request for an award of attorney’s fees and costs on appeal is denied. See 28 U.S.C. § 2412. . The HONORABLE WILLIAM R. WILSON, JR., United States District Judge for the Eastern District of Arkansas.

Alaska Wildlife Alliance v. Jensen

OPINION EUGENE A WRIGHT, Circuit Judge. We must decide the extent to which federal statutes restrict commercial fishing in Alaska’s Glacier Bay National Park (the Park). We hold that plaintiffs Alaska Wildlife' Alliance and American Wildlands have standing to challenge commercial fishing in the Park’s waters. We further hold that commercial fishing is statutorily prohibited in the Park’s designated wilderness areas, but not in its non-wilderness areas. I Plaintiffs sued the Secretary of the Interi- or and officials of the National Park Service, claiming that commercial fishing in the Park violates certain federal statutes. Plaintiffs interpret the Organic Act, which created the national park system, and the Alaska National Interest Lands Conservation Act (“AN-ILCA”) to prohibit commercial fishing throughout the Park. The Park Service concedes that commercial fishing is prohibited by statute in the Park’s wilderness areas. It maintains, however, that the statutes give it discretion to permit commercial fishing in non-wilderness areas. The Allied Fishermen of Southeast Alaska (the Fishermen), an association of commercial fishers, intervened to defend its interests. It argues that plaintiffs lack standing and that commercial fishing is permitted throughout the Park. The district court concluded that plaintiffs have standing and that commercial fishing is statutorily prohibited only in wilderness areas of the Park. Plaintiffs appeal the determination that commercial fishing is permitted in non-wilderness areas of the Park.- The Fishermen cross-appeal the court’s findings that appellants have standing and that federal law prohibits commercial fishing in the Park’s wilderness areas. We have jurisdiction -under 28 U.S.C. § 1291 and we affirm. II A. Standing We review de novo whether a party has standing. Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1395 (9th Cir.1992). An organization may bring an action on behalf of its members if: (1) the individual members would have standing to sue; (2) the organization’s purpose relates to the interests being vindicated; and (3) the claims asserted do not require the participation of individual members. Id. The Fishermen challenge only plaintiffs’ ability to meet the first requirement of organizational standing. The individual members have standing if they can demonstrate (1) an actual or threatened injury that (2) is fairly traceable to the challenged action such that (3) it is likely to be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). The individual members of the plaintiff organizations would have standing. First, they have shown injury. The experiences recounted in their affidavits demonstrate aesthetic and recreational harm that will support standing. See Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1365-66, 31 L.Ed.2d 636 (1972); Fund for Animals, 962 F.2d at 1396. Affiants P.L. Brown and Kin Behrens wrote that the noise, trash and wakes of vessels in the Park have diminished their enjoyment. Brown described seeing “sea lions in the bay with huge trolling lures hanging from their mouths.” Karen Jettmar, a former back country ranger in the Park, expressed concern over the vessels’ displacement of whales from preferred feeding areas and described how she now plans her visits to the Park to avoid the fishermen’s presence. And Wayne Hall wrote that the wake from vessels in the bay endangered kayakers. Next, plaintiffs offer sufficient proof that their injuries are traceable to commercial fishing. At the summary judgment stage, factual allegations in support of standing are taken as true. Lujan, 504 U.S. at 561, 112 S.Ct. at 2136-37. Plaintiffs need only plead faets that, taken as true, would show that commercial fishing caused their injuries. We find their affidavits about injuries sufficient. Finally, their injuries are likely to be redressed by a favorable ruling. The Fishermen argue that plaintiffs cannot meet this requirement because they challenge agency regulation of a third party. See Lujan, 504 U.S. at 568-70, 112 S.Ct. at 2140-42 (discussing difficulty of proving redressability when the plaintiffs relief depends upon a third party’s reaction to agency action). This case does not present the problems that the Fishermen identify. A finding in plaintiffs’ favor, that commercial fishing is statutorily prohibited in Glacier Bay, would result in the elimination of commercial fishing in the relevant areas. This would redress plaintiffs’ claimed injuries. B. Commercial Fishing in Glacier Bay Wilderness We review questions of statutory interpretation de novo, but will defer to the agency’s interpretation unless it contravenes the express language of the statute or clear congressional intent. Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984); Conlan v. United States Dept. of Labor, 76 F.3d 271, 274 (9th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 431, 136 L.Ed.2d 330 (1996). ANILCA designates roughly 2.77 million acres of the Park as “wilderness” to be administered under the Wilderness Act, 16 U.S.C. § 1131 et seq, unless otherwise provided by ANILCA. Greater protections apply to wilderness areas than to ordinary park lands. In pertinent part, the Wilderness Act bans commercial enterprise from wilderness areas: “Except as specifically provided for in this chapter, and subject to existing private rights, there shall be no commercial enterprise ... within any wilderness area designated by this chapter_” 16 U.S.C. § 1133(e). The court held that this provision bans commercial fishing in Glacier Bay’s wilderness areas, and the Park Service agrees with this interpretation. The Fishermen argue that two provisions exempt commercial fishing from the Wilderness Act’s ban on commercial activity. The first is a section of the Wilderness Act that allows motorized vessels in wilderness areas “where these uses have already become established.” 16 U.S.C. §' 1133(d)(1). This provision is of no use to the Fishermen. Their use of motorboats is not at issue; it is fishing for profit that the Wilderness Act prohibits. This they may not do, whether from motorized vessels or otherwise. Next, the Fishermen cite a section of AN-ILCA that provides: On all public lands where the taking of fish and wildlife is permitted in accordance with the provisions of this Act or other applicable State and Federal law, the Secretary shall permit ... the continuance of existing uses, and the future establishment, and use, of temporary campsites, tent platforms, shelters, and other temporary facilities and equipment directly and necessarily related to such activities. 16 U.S.C. § 3204(a). The Fishermen interpret this provision to require that all “existing uses” of park resources be allowed to continue. The plain language of ANILCA does not support this interpretation, and the Park Service’s contrary interpretation requires deference. The court correctly held that ANIL-CA and the Wilderness Act prohibit commercial fishing in the Park’s wilderness areas. C. Commercial Fishing in the Park Non-Wilderness Areas Plaintiffs argue that the Organic Act and ANILCA prohibit commercial fishing throughout the Park. The Park Service and the Fishermen interpret the statutes to give the Park Service discretion to permit or to prohibit commercial fishing in non-wilderness areas of the Park. In the absence of an explicit statutory directive, we must defer to the Park Service’s interpretation if it is “permissible” in light of the available evidence of congressional intent. Chevron, 467 U.S. at 843, 104 S.Ct. at 2781-82. The question before us is not which interpretation we prefer, but whether the Park Service’s interpretation is reasonable. Chugach Alaska Corp. v. Lujan, 915 F.2d 454, 457 (9th Cir.1990). Because the Park Service is charged with administering the statutes at issue, we must find its interpretation reasonable “unless there are compelling indications that it is wrong, especially when Congress has refused to alter the administrative construction.” Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969) (footnote omitted). 1. Statutory Directive No statute expressly prohibits commercial fishing in the Park’s non-wilderness areas or demonstrates clear congressional intent to restrict the Park Service’s discretion to permit commercial fishing. We discuss each of the statutes on which plaintiffs rely for their contrary view. a. Organic Act The Organic Act, 16 U.S.C. § 1 et seq., governs all national parks. The Act gives the Secretary of the Interior authority to “make and publish such rules and regulations as he may deem necessary or proper for the management of the parks, monuments, and reservations under the jurisdiction of the National Park Service.” 16 U.S.C. § 3. The Act defines the scope of the Secretary’s delegated authority as follows: The authorization of activities shall be construed and the protection, management, and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established, except as may have been or shall be directly and specifically provided by Congress. 16 U.S.C. § la-1. Thus, the Secretary may not exercise his authority to the detriment of the Act’s purpose, which is “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” 16 U.S.C. § 1. Plaintiffs argue that the Secretary’s failure to prevent commercial fishing in the Park derogates the Act’s purpose of conservation and therefore violates an express statutory directive. We disagree. Whether conduct derogates long-term goals of conservation is a factual question that we are not prepared to reach. In the absence of a specific congressional statement that commercial fishing derogates the Act’s goals, there is no reason to conclude that the Secretary’s failure to prohibit commercial fishing violates the Act. Had Congress intended to prohibit commercial activity in national parks, it could have used the same clear language used in the Wilderness Act when it amended the Organic Act in 1970 and 1978. Pub.Ls. 91-383 (Aug. 18,1970), 95-581 (Mar. 27,1978). b. ANILCA Plaintiffs rely on three separate provisions of ANILCA, which allocated federal lands in Alaska and created the Alaskan national parks. First, they cite 16 U.S.C. § 410hh-2, which provides that the Secretary must administer Alaska’s parks pursuant to 16 U.S.C. §§ 1, 2 and 4. Because we conclude that the Organic Act, 16 U.S.C. § 1, does not prohibit commercial fishing, this provision adds nothing to plaintiffs’ argument. Next, plaintiffs rely on 16 U.S.C. § 410hh-4, which directs the Secretary to permit commercial fishing in certain areas of the Park: Cape Krusenstern National Monument, the Malaspina Glacier Forelands, and Dry Bay. In these areas, “the Secretary may take no action to restrict unreasonably the exercise of valid commercial fishing rights or privileges obtained pursuant to existing law.” 16 U.S.C. §§ 410hh-l Plaintiffs interpret this as an exception to a general statutory ban, but the language of the provision does not support that interpretation. Its plain meaning is that the Park Service may not prohibit commercial fishing in the designated areas. It implies therefore that the Park Service may prohibit fishing elsewhere, not that commercial fishing is statutorily prohibited elsewhere. If the Park Service lacked discretion to regulate commercial fishing in other areas, this provision would not have been phrased in terms of what the Secretary must do. It would have just exempted the listed areas from the statutory ban. The final section on which plaintiffs rely provides: The taking of fish and wildlife in all conservation system units, and in national conservation areas, national recreation areas, and national forests, shall be carried out in accordance with the provisions of this Act [ANILCA] and other applicable State and Federal law. Those areas designated as national parks or national park system monuments in the State shall be closed to the taking of fish and wildlife, except that— * * * (2) fishing shall be permitted by the Secretary in accordance with the provisions of this Act and other applicable State and Federal law. 16 U.S.C. § 8202(c). By its plain terms, this provision permits fishing in national parks and monuments to the extent already permitted under applicable law. We have already concluded that applicable statutory law permits commercial fishing in the Park. This provision does not prohibit it. Our reading does not make subsection (2) superfluous. Subsection (2) fulfills two purposes: it excludes hunting from national parks and monuments, and it restricts the scope of section 3202(c). The general rule, as expressed in section 3202(c), is that national parks and monuments are not open to subsistence uses. However, other provisions of ANILCA permit subsistence fishing in certain national parks and monuments. See 16 U.S.C. § 410hh-2. Thus, subsection (2) harmonizes section 3202(e)’s general prohibition with statutes that permit subsistence fishing. No statute expressly contradicts the Park Service’s position that it has discretion to permit commercial fishing in non-wilderness areas of the Park. 2. Congressional Intent Other indicia of congressional intent support the Park Service’s interpretations of the Organic Act and ANILCA. For example, some statutes creating national parks before 1936 expressly prohibited commercial fishing. See, e.g., 16 U.S.C. § 43 (1890) (Sequoia National Park); 16 U.S.C. § 395c (1930) (Hawaii National Park). Once Congress passed the Federal Register Act, 44 U.S.C. § 1501 (1935), permitting agencies to publish regulations, it never again included an express prohibition on commercial fishing in a statute creating a new park. This change indicates that Congress intended the Secretary to regulate commercial fishing. Indeed, immediately following passage of the Federal Register Act, the Park Service began to do so. See 1 Fed.Reg. 674 (June 27,1936) (prohibiting commercial fishing in all national parks); see also 6 Fed.Reg. 1627 (March 26, 1941) (exempting Glacier Bay National Monument from prohibition). In the fifty years during which the Park Service has regulated commercial fishing, Congress has intervened only to identify parks where the Park Service may not prohibit it. See, e.g., 16 U.S.C. § 410hh-4. ’ Plaintiffs argue that Congress’s 1978 amendment to the Organic Act was intended to reprimand the Park Service for permitting commercial fishing in national parks. See Pub.L. 96-250 (Mar. 27, 1978) (prohibiting the Secretary from authorizing activities “in derogation of the values and purposes for which” the parks were created), codified at 16 U.S.C. § la-1. The legislative history does not support plaintiffs’ reading. Congress added the “derogation” language when it expanded the Redwood National Park. The House Report describes this language as assuring that “management of these areas shall not compromise these resource values except as Congress may have specifically provided. Thus, the Secretary is to afford the highest standard of protection and care to the lands within the Redwood National Forest.” 1978 U.S.C.C.A.N. 463, 467-68 (quoting from H.R. No. 95-581). The legislative history therefore refutes plaintiffs’ assertion that Congress had fish in mind when it added that language. We need not establish conclusively that Congress intended to delegate the authority to regulate commercial fishing. We need only search for “compelling indications” that it did not, Red Lion Broadcasting, 395 U.S. at 381, 89 S.Ct. at 1801-02, for only then may we reject the Park Service’s interpretation. 3. Deference to Agency Interpretation Having found the Park Service’s interpretation reasonable, we must defer to it. Plaintiffs argue that deference is not warranted because the Park Service has adopted its interpretation of the statute solely for the purpose of the litigation or has recently reversed a prior interpretation: See Seldovia Native Ass’n v. Lujan, 904 F.2d 1335, 1345 (9th Cir.1990). On the contrary, the Park Service’s interpretation accords with its previous statements on this issue. As discussed above, immediately following passage of the Federal Register Act in 1935, the Secretary prohibited commercial fishing in all national parks. 1 Fed.Reg. at 674 (June 27, 1936). In 1941, the Secretary promulgated rules exempting certain parks from that ban. 6 Fed.Reg. at 1627 (March 26, 1941). If he had interpreted the Organic Act to prohibit commercial fishing, he would have found the 1936 regulation unnecessary and the 1941 regulation unlawful. No regulation states or implies that commercial fishing is statutorily prohibited in national parks. Plaintiffs rely particularly on a 1983 regulation that prohibits commercial fishing “except where specifically authorized by Federal statutory law.” 48 Fed.Reg. 30252, 30283 (June 30, 1983). Plaintiffs interpret this as an acknowledgment by the agency that only Congress can permit commercial fishing. We read that provision to mean that commercial fishing is prohibited by regulation except where a specific statute deprives the agency of the power to prohibit commercial fishing, e.g., 16 U.S.C. § 230d (providing that the Secretary must permit commercial fishing in the Barataría Marsh Unit of Jean LaFitte National Historical Park). Similarly, no regulation has found that commercial fishing derogates park values and purposes. The 1983 regulations discuss the “derogation” language of 16 U.S.C. § la-1 and list activities that could be prohibited, such as “timber harvesting, mining, or the construction or use of unauthorized dams, roads and airports.” 48 Fed.Reg. at 30253. The listed activities do not include commercial fishing and are unlike commercial fishing in that they all impose permanent or long-term physical changes on the land. Plaintiffs rely on regulations proposed in 1991, but never adopted, that would have phased out commercial fishing by 1998. These proposals refer to commercial fishing as a “nonconforming use” of park lands. 56 Fed.Reg. 37262, 37263 (Aug. 5,1991). Plaintiffs place particular reliance on this statement in arguing that the agency interpreted the Organic Act to forbid commercial fishing prior to commencing this litigation. However, there is no reason to suppose that “nonconforming” means “in derogation of park values and purposes.” The. 1991 proposed regulation acknowledges that continuation of commercial fishing requires a finding that it is not in derogation of park values and purposes, but does not make a finding on that issue. 56 Fed.Reg. at 37262. In explaining why commercial fishing fails to “conform,” the proposed regulations cite a regulatory ban on commercial activities, 36 C.F.R. § 5.3, and a 1978 internal management policy. 56 Fed.Reg. at 37263. These statements may • support plaintiffs’ claims (not at issue here) that commercial fishing in the Park violates a regulation, but they do not support a finding that the agency has consistently interpreted the Act to prohibit commercial fishing. Finally, plaintiffs cite two legal memoran-da submitted by the Justice Department, as counsel for the Park Service, in a prior federal action. Memorandum in Support of Summary Judgment and Reply in Support of Summary Judgment, N.R.A v. Arnett, No. 84-1348 (D.D.C.1984). These memoranda refer to the agency’s “consistent” position that commercial activities, such as trapping, should not be permitted in the parks. We read them as referring to the agency’s consistent regulation against such activities, not to a statutory prohibition. Further, longstanding limits on applying the doctrine of estoppel to the government preclude us from binding the Park Service to a broad reading of the memoranda. No statement cited by plaintiffs indicates that the Park Service has deviated from its current interpretations of the Organic Act and ANILCA: We find no reason to abandon the deference that Chevron mandates, 4. Case Law Contrary to plaintiffs’ assertion, no case has held that the Organic Act prohibits hunting, trapping or fishing in national parks. Some cases have held that the Organic Act permits the Secretary to prohibit these activities. See Michigan United Conservation Clubs v. Lujan, 949 F.2d 202 (6th Cir.1991) (upholding Park Service regulation against trapping in national park; the agency’s decision that trapping would derogate park purposes not arbitrary and capricious); Organized Fishermen of Florida v. Hodel, 775 F.2d 1544 (11th Cir.1985) (upholding regulatory restriction on fishing in Everglades National Park; no statute expressly permitted fishing in that park, so Congress had not limited Secretary’s discretion to prohibit it), cert. denied, 476 U.S. 1169, 106 S.Ct. 2890, 90 L.Ed.2d 978 (1986); National Rifle Ass’n v. Potter, 628 F.Supp. 903 (D.D.C.1986) (finding that regulatory ban on hunting and trapping in particular parks was not arbitrary and capricious because nothing in the Act clearly permits hunting and trapping in all national parks). These cases support the result we reach by recognizing the broad discretion that the Organic Act confers on the Park Service and the deference courts owe to the Park Service’s interpretation of the statute it administers. See also Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1452 (9th Cir.1996) (interpreting Organic Act to give Park Service authority to close mountain bike trails; agency finding that trails would endanger park values was not arbitrary and capricious); Conservation Law Found. of New England v. Secretary of the Interior, 864 F.2d 954 (1st Cir.1989) (holding that Park Service could permit limited use of offroad vehicles on national seashore); Wilderness Public Rights Fund v. Kleppe, 608 F.2d 1250, 1254 (9th Cir.1979) (holding that Park Service could allocate more permits to commercial river guides than to users experienced enough to run river on their own), cert. denied, 446 U.S. 982, 100 S.Ct. 2962, 64 L.Ed.2d 838 (1980); Sierra Club v. Andrus, 487 F.Supp. 443, 448 (D.D.C.1980) (finding that Park Service enjoys discretion to determine how to protect park resources, so that his failure to exercise water rights is subject to deferential review), aff'd 659 F.2d 203 (D.C.Cir.1981). Ill The district court properly held that plaintiffs have standing to challenge commercial fishing in the Park. Moreover, it properly held that commercial fishing is statutorily prohibited only in the Park’s designated wilderness areas. Neither an express statutory directive nor compelling evidence of clear congressional intent contradicts the Park Service’s interpretations of the statutes at issue. AFFIRMED. . All other claims were dismissed by stipulation of the parties. . 16 U.S.C. §§ 1 et seq. . 16 U.S.C. §§ 3101 et seq. . The Park Service also concedes that service-wide regulations prohibit commercial fishing in national parks, except where statutes require the Secretary to permit commercial fishing. See 36 C.F.R. §§ 2.3(d)(4), 5.3. These regulations have not been enforced in the Park, see 36 C.F.R. § 13.65(b), and the Park Service’s failure to enforce them is not at issue here. . The Fishermen ask us not to rely on the affidavits because they were submitted with plaintiffs’ reply brief in the district court. However, plaintiffs were not required to submit the affidavits before their standing was challenged. If the Fishermen wanted a chance to respond to the affidavits, it could have moved to file a surreply. It has waived this objection. . We do not address the Fishermen's argument, raised for the first time in its reply brief, that the Glacier Bay Wilderness is subject to state jurisdiction. Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990). . The Organic Act created the Park Service, 16 U.S.C. § 1, to administer the national park system under the Secretary’s direction. See Universal Interpretive Shuttle Corp. v. Wash. Metropolitan Area Transit Comm., 393 U.S. 186, 187 n. 1, 89 S.Ct. 354, 356 n. 1, 21 L.Ed.2d 334 (1968). . In their arguments to the district court, plaintiffs relied on two provisions that they do not cite here: 16 U.S.C. §§ 3201 and 3126. To the extent that we must address them, we find in them no express prohibition on commercial fishing in the Park. They relate to subsistence and sport fishing. . Of course, if the Organic Act of 1916, 16 U.S.C. §§ 1 et seq., had prohibited commercial fishing in all national parks, these provisions would have been unnecessary. . Plaintiffs base several other arguments on legislative history. The probative value of such arguments is extremely limited. For example, plaintiffs rely for their interpretation of the Organic Act on a comment by Representative Breaux during the debates on ANILCA. He stated that "in pure park you can go camping; you can go hiking; you can take pictures of birds; you can watch birds; but you cannot do any commercial fishing or you cannot do any wildlife management in the way that you can in a wildlife refuge.’’ 125 Cong.Rec. 11166 (May 15, 1979). This comment lacks probative value for a number of reasons. First, it is not part of the legislative history of the Organic Act. Second, it is not clear whether Mr. Breaux meant a "pure park” to be a national park or a wilderness area. The preceding dialogue concerned allocating land as a wilderness area, where mining for hard minerals' might not be permitted. Id. at 11165. Third, Mr. Breaux may have been referring to regulatory prohibitions on commercial fishing; he did not state that it was statutorily prohibited. And finally, another representative responded to Mr. Breaux by saying "I do not think that is an accurate account of the law. It is not accurate in terms of a statement, so that is not a true reflection of what the situation is.” Id. at 11166 (comment of Mr. Vento).

Alaska Wildlife Alliance v. Jensen

SCHROEDER, Circuit Judge, concurring. I concur in all of the majority opinion except Part II.C.2, dealing with Congressional Intent. With respect to the non-wilderness areas of Glacier Bay National Park, we today decide only that commercial fishing is not expressly prohibited by statute. The Secretary’s proposed regulations are not before us, nor is any question of the limits of the Secretary’s discretion to permit commercial fishing. In my view, the legislative history contains strong indications that Congress considered consumptive use of resources to be generally prohibited in national parks, and that by making Glacier Bay a national park in 1980, Congress intended that commercial fishing be phased out in the park. The key committee report noted that “[s]ince the establishment of the National Park System in 1916, the consumptive use of wildlife resources within National Parks and National Monuments has been prohibited. Such units have traditionally been viewed as wildlife sanctuaries for the nonconsumptive enjoyment of the American public.” S.Rep. 96-413, at 168 (1980), reprinted in 1980 U.S.C.C.A.N. at 5070, 5112. . Consistent with this background understanding, the committee stated that “Glacier Bay National Park [is] intended to be [a] large sanctuar[y] where fish and wildlife may roam freely, developing their social structures and evolving over long periods of time as nearly as possible without the changes that extensive human activities would cause.” Id. at 137, reprinted in 1980 U.S.C.C.A.N. at 5081. Continued commercial fishing is inconsistent with the concept of a sanctuary. Congress’ treatment of the Dry Bay area, where it explicitly intended commercial fishing to continue, is also instructive. Congress designated those units where commercial fishing was to continue as “preserves,” rather than as part of the Park itself, indicating congressional understanding that commercial fishing is inconsistent with those uses generally permitted in national parks. Id. at 164, reprinted in 1980 U.S.C.C.A.N. at 5108 (“The preserve is to be managed in the same manner as the park, except that hunting and trapping may be allowed ... [and] the existing commercial fishing operations are allowed to continue.”); see also H.R.Rep. 95-1045, pt. 1, at 95 (1978) (noting that the House committee excluded Dry Bay from the proposed park addition “so that active commercial fishing operations would be located outside the Park boundaries.”). Speaking of the three areas where commercial fishing was to be permitted to continue, including Dry Bay, the Senate committee noted that “[i]n all three units the actual fishing takes place offshore in the ocean, outside of the units.” S.Rep. 96-413 at 172, 1980 U.S.C.C.A.N. at 5116. By referring to “all three units” where commercial fishing was “to continue,” the committee indicated its understanding that commercial fishing would not continue elsewhere. Notwithstanding its understanding that commercial fishing was inconsistent with the values and purposes of national parks, however, Congress also indicated its intent that existing uses, where inconsistent, be phased out rather than abruptly terminated. The committee noted that [w]hen establishing new units of the National Park System the Congress has had a long-standing traditional practice of reviewing those values and activities within new units which, if immediately curtailed, might result in substantial hardships to the local residents of the area. Consequently, in appropriate instances certain ... activities have been phased out of such units gradually, rather than terminated immediately at the time of establishment of the unit. S.Rep. 96-413 at 168, 1980 U.S.C.C.A.N. at 5112. Congress’ intent that existing uses be phased out to avoid hardship, as well as its intent that certain subsistence and sport uses be permitted to continue, see, e.g., 16 U.S.C. §§ 3126, 3201, explain the absence of an immediate statutory ban on commercial fishing within the Park. Today’s decision is limited to the question the district court decided, whether federal statutes contain an immediate prohibition on all commercial fishing in the park. It should not be interpreted as an endorsement of unfettered agency discretion to permit commercial fishing in the Park.

Clouser v. Espy

THELTON E. HENDERSON, District Judge: This case is a lawsuit by holders of certain mining claims located on federal land within National Forests. The claim holders challenge rulings by the U.S. Forest Service that, among other things, refused under certain circumstances to permit them to use motor vehicles to access their claims, requiring them instead to use pack animals. On the parties’ cross motions for summary judgment, the district court granted summary judgment for defendants and plaintiffs appealed. For the reasons set forth below, we affirm. I. BACKGROUND A. OVERVIEW This lawsuit is brought by three different sets of plaintiffs, all of whom have asserted rights to mine in areas located wholly within federal national forest lands. Two of the claims are located in regions designated “wilderness areas” pursuant to the Wilderness Act of 1964, 16 U.S.C. §§ 1131-1136, and the third is located on national forest land that is part of the National Wild and Scenic Rivers System, 16 U.S.C. § 1271. In each case, the national forest land in which the mining claims are located was at one time open to the public for exploration, prospecting, and the extraction of minerals; however, the land was subsequently withdrawn from mineral entry under the Wilderness Act or the Wild and Scenic Rivers Act, so that only persons establishing that they discovered a valuable mineral deposit prior to the withdrawal possess a valid right to mine claims there (a “valid claim”). All three sets of claims at issue are unpatented. The validity of such claims is determined by the U.S. Department of the Interior (“Interior”) through its Bureau of Land Management (“BLM”), which administers the federal laws governing the right to stake mining claims on federal land. However, the claims are located on national forest lands which otherwise are regulated by the U.S. Forest Service (“Forest Service” or “Service”), a part of the U.S. Department of Agriculture (“Agriculture”). This case involves a challenge to certain decisions made by the Forest Service with respect to plans proposed by the plaintiffs for mining the three sets of claims at issue. The challenged Forest Service decisions are: (1) Forest Service rulings refusing to permit motorized access to, or to approve the conduct of other mining activities on, certain claims, pending determination of claim validity by the Department of the Interior (the “Wilson” and “Robert E.” claims); (2) Forest Service rulings that, even for valid claims, access to claims located within federal national forest lands should be limited to non-motorized means where the Forest Service considers such means adequate to carry out the proposed mining operations (the “Robert E.” and “Thunderbolt” claims); and (3) a Forest Service ruling requesting that plaintiffs file a plan of proposed mining operations, as required by Forest Service regulations (the ‘Wilson” claim). B. DESCRIPTION OF THE THREE GROUPS OF MINING CLAIMS AT ISSUE AND THE ADMINISTRATIVE PROCEEDINGS PRECEDING THIS LITIGATION 1. THE ROBERT E. MINING CLAIMS The Robert E. claims, owned by plaintiffs Leroy and Sharon Clouser, are part of the Siskiyou National Forest and are located in Curry County, Oregon. The claims are located on land that was included in the Siski-you Forest Reserve on October 5, 1906, and withdrawn from mineral entry when it became part of the Kalmiopsis Wilderness on September 3, 1964. ER at 150. In 1985, the Forest Service conducted a mineral examination of the Robert E. claims and initiated contest proceedings in the Department of the Interior to have the claims declared void, on the ground that no valuable mineral deposits had been discovered there before 1964 when the land was withdrawn from mineral entry. An Interior Department Administrative Law Judge (“ALJ”) held the claims null and void, and plaintiffs have appealed that decision to the Interior Department’s Board of Land Appeals. ER at 220 n. 4. In June 1990, plaintiffs filed a plan of operations with the Forest Service, proposing certain mining activities on the Robert E. claims. The plan proposed accessing the claims by using motor vehicles to drive to the claims across surrounding national forest wilderness lands. The Forest Supervisor approved the plan subject to certain conditions, one of which was that plaintiffs would have to use non-motorized means such as pack animals to access the claims. SER at 55-57. Plaintiffs appealed this decision to the Deputy Regional Forester who affirmed it in October 1990. 2. THE THUNDERBOLT MINING CLAIMS The Thunderbolt claims, owned by plaintiffs Carl, Judith, and Anthony Setera, are located in the Umatilla National Forest in Oregon. The lands on which the claims are located were included in the Blue Mountain Forest Reserve on March 15, 1906; these lands were withdrawn from mineral entry and became part of the North Fork John Day Wilderness Area on June 26, 1984. There are six claims; five were located in 1980 and the sixth in 1982. For purposes of this case only, the government has agreed to assume that Thunderbolt claim # 2, the only claim involved in this case, is valid. SER at 26. In August 1988, the plaintiffs filed a notice of intent and plan of operations proposing the use of a “suction dredge” and other equipment to test Thunderbolt claim #2. They proposed motorized access over two Forest Service trails covering a distance of approximately four miles in the wilderness. This proposed route had been gated and blocked from traffic in 1984 after the land was included in the North Fork John Day Wilderness Area. SER at 49. In November 1988, the Forest Supervisor issued a decision restricting plaintiffs to using pack animals or other non-motorized means of access, on the ground that motorized access was not essential due to the limited nature of the proposed operation. ER at 62-68; ER at 152. In May 1989, plaintiffs proposed another plan of operations, which they revised in July 1989. The revised plan proposed use of a five-inch suction dredge and motorized access over the same two Forest Service roads. ER at 69-71. In August 1989, the Forest Supervisor determined, based on an environmental assessment that had been conducted in 1988, that the plan could not be approved as submitted because motorized access was not necessary given the low level of proposed operations and because of the Forest Service’s statutory mandate to preserve the wilderness characteristics of the lands in question. ER at 73-74. The Forest Supervisor directed the plaintiffs to amend the operating plan and to provide for access by horses or other non-motorized means. ER at 73-74. Plaintiffs appealed, and in February 1990 the Deputy Regional Forester affirmed the Forest Supervisor’s decision limiting access to non-motorized means. The plaintiffs filed a petition for discretionary review of this decision with the Chief of the Forest Service, but it was denied. ER at 102. 3. THE WILSON PLACER MINING CLAIM The Wilson Claim, owned by plaintiffs Gary Hoefler, Don Wurster, and Cameron and Robin Anderson, is located along the Illinois River in Josephine County, Oregon. It is part of the Siskiyou National Forest and the Illinois River component of the Wild and Scenic Rivers System. ER at 148. The lands on which it is located were withdrawn from mineral entry on January 7, 1926, pursuant to § 24 of the Federal Power Act of 1920, codified as amended at 16 U.S.C. § 818. The land was reopened to mineral entry in 1955, but withdrawn again pursuant to the Wild and Scenic Rivers Act of 1968,16 U.S.C. § 1271 et seq. The Forest Service’s records indicate that the claim was located on July 14, 1934, at a time when the lands were not open to mineral entry. SER at 2-7, 10, 12. In September 1988, plaintiffs submitted a plan of operations to the District Ranger of the Siskiyou National Forest proposing mining activities on the claim. ER at 38. The District Ranger acknowledged receiving the plan but explained that he could not approve it until the claim’s validity could be established. ER at 39. In January 1989, plaintiffs submitted a revised plan of operations. The District Ranger again refused to approve the plan because of doubts about the claim’s validity. He explained that he had asked the BLM to determine the status of the lands encompassed by the Wilson claim and would await the BLM determination on the validity of the claim before making a final decision on the proposed plan of operations. ER at 40-41. In March 1990, plaintiffs submitted a notice of intent to file a plan of operations. In April 1990, the District Ranger wrote back, explaining that the Forest Service could not approve mining operations on the claim until it received a BLM opinion on the legal land status of the claim “demonstrat[ing] that a valuable mineral deposit existed as of the date of the withdrawal.” ER at 42-43. Plaintiffs filed a notice of appeal. ER at 44. In the meantime, on June 6, 1990, the BLM issued a decision declaring the Wilson claim null and void on the ground that the claim was located at a time when the land in question had been withdrawn from mineral entry. The plaintiffs appealed the BLM decision to the Interior Board of Land Appeals. SER at 12,14. Following the BLM decision, the Acting Forest Supervisor dismissed plaintiffs’ Forest Service appeal as moot. ER at 47. Plaintiffs then requested that the Regional Forester stay the decision mooting their appeal of the District Ranger’s decision of April 1990. ER at 48, 50. The Deputy Regional Forester wrote back that the District Ranger’s decision not to approve the notice of intent until the BLM decision had been issued was not an appealable decision; he explained that the purpose of a notice of intent is to assist the District Ranger in determining whether a plan of operations is required, and that only a decision on the actual plan of operations, when issued, would be appealable under 36 C.F.R. Part 251. ER at 54. Plaintiffs filed another notice of intent in October 1990. The District Ranger determined that because the proposed operations would “likely cause significant disturbance of surface resources,” the Forest Service regulations required that plaintiffs file a plan of operations. The District Ranger also noted that the BLM had declared the Wilson claim null and void, but recognized that “you have appeal rights [within Interior] to this decision and have a valuable interest to protect by maintaining assessment work during the appeal process.” ER at 56, 58. Plaintiffs have not submitted a plan of operations pursuant to the District Ranger’s decision. In September 1993, well after this suit was filed and while this appeal was pending, the Interior Department Board of Land Appeals affirmed the BLM’s decision ruling the Wilson claim null and void. C. THIS LAWSUIT Plaintiffs filed suit jointly against the Secretary of Agriculture and various Forest Service and Interior officials, seeking only declaratory and injunctive relief requiring the defendants to grant plaintiffs motorized access to their mining claims and permit them to conduct mining operations. ER at 1-21. The district court referred the case to a magistrate judge. On the parties’ cross-motions for summary judgment, the magistrate judge recommended granting the government’s summary judgment motion and denying plaintiffs’ summary judgment motion. ER at 146. The district court, after reviewing plaintiffs’ objections to the magistrate’s report, adopted most of the findings of the magistrate and proceeded to grant defendants’ summary judgment motion and deny plaintiffs’. This appeal followed. II. STANDARD OF REVIEW The district court’s grant of summary judgment for the government is reviewed de novo by the court of appeals. United States v. City of Spokane, 918 F.2d 84, 86 (9th Cir.1990), cert. denied, 501 U.S. 1250, 111 S.Ct. 2888, 115 L.Ed.2d 1053 (1991). III. THE FOREST SERVICE’S AUTHORITY TO REGULATE INGRESS TO AND EGRESS FROM MINING CLAIMS LOCATED IN NATIONAL FOREST LANDS In their complaint, plaintiffs challenged the Forest Service’s rulings on, inter alia, the ground that the Service lacked statutory authority to regulate ingress to and egress from mining claims located in national forest lands. In the course of granting summary judgment for defendants and denying summary judgment for plaintiffs, the district court ruled that, as a matter of law, the Department of Agriculture, through the Forest Service, has authority to regulate the means of transportation that plaintiffs may use to cross the national forest areas that surround their claims in order to gain access to the claims. ER at 218. Plaintiffs now challenge that ruling on appeal. A. PLAINTIFFS’ ARGUMENT Plaintiffs assert — no doubt correctly — that the means of access permitted materially affects the commercial viability of mining claims. Under the legal standard applied by the Department of the Interior to determine whether a putative claim is “valid,” validity depends in part on commercial viability. On this basis, plaintiffs argue that adjudication of questions concerning access materially affects claim validity. They therefore contend that adjudication of such issues is committed to the exclusive jurisdiction of the Department of the Interior since, the parties agree, Interior is the agency authorized to adjudicate the validity of mining claims. Although all three of the claims at issue in this suit are located within national forests, only two of them — the Robert E. and Thunderbolt claims — are located within areas that have been designated “wilderness areas” pursuant to the Wilderness Act. Because the Forest Service has special statutory authority to regulate activities in wilderness areas, we shall address separately the question of Forest Service regulation of access to claims located in wilderness areas and non-wilderness areas. B. CLAIMS ON NATIONAL FOREST LANDS THAT ARE DESIGNATED AS “WILDERNESS AREAS”: THE ROBERT E. AND THUNDERBOLT CLAIMS As to these two claims located in wilderness areas, there can be no doubt whatsoever that the Forest Service enjoys the authority to regulate means of access, for the Department of Agriculture has expressly been granted statutory authority to do so. 16 U.S.C. § 1134(b) provides that In any case where valid mining claims or other valid occupancies are wholly within a designated national forest wilderness area, the Secretary of Agriculture shall by reasonable regulations consistent with the preservation of the area as wilderness, permit ingress and egress to such surrounded areas by means which have been or are being customarily enjoyed with respect to other such areas similarly situated. This provision’s unambiguous instruction to the Secretary of Agriculture to permit ingress and egress to such areas “by means which have been or are being customarily enjoyed with respect to other such areas similarly situated” clearly implies an authority and duty to determine what means are being or have been “customarily enjoyed” in like areas. Indeed, the provision expressly empowers the Secretary to promulgate “reasonable regulations” implementing the statutory mandate. Although Forest Service decisions regarding access may indeed affect whether a claim is found to be “valid,” that fact in no way alters 16 U.S.C. § 1134(b)’s unequivocal delegation of authority to the Secretary of Agriculture. While Congress has assigned to Interior authority to adjudicate claim validity, it is free to allocate regulatory authority as it chooses and in 16 U.S.C. § 1134(b) it has empowered Agriculture to make decisions regarding a particular issue that happens to have collateral consequences for claim validity. C. CLAIMS ON NATIONAL FOREST LANDS THAT ARE NOT DESIGNATED “WILDERNESS AREAS”: THE WILSON CLAIM National forest lands that are not designated as wilderness areas are not covered by 16 U.S.C. § 1134(b). However, the government maintains that other grants of statutory authority empower the Department of Agriculture to regulate the means that may be used to access mining claims that are located in nonwilderness area national forest lands. The government relies on two provisions of the Organic Administration Act of 1897, which established the national forest system. That statute authorizes the Secretary of Agriculture to promulgate rules and regulations to protect the national forest lands from destruction and depredation. 16 U.S.C. § 551. Further, it specifies that persons entering the national forests for the purpose of exploiting mineral resources “must comply with the rules and regulations covering such national forests.” 16 U.S.C. § 478. Interpreting the scope of the Forest Service’s grant of regulatory authority, this circuit has held that The Forest Service may properly regulate the surface use of forest lands. While the regulation of mining per se is not within Forest Service jurisdiction, where mining activity disturbs national forest lands, Forest Service regulation is proper. See United States v. Weiss, 642 F.2d 296, 298 (9th Cir.1981) (Secretary of Agriculture has “power to adopt reasonable rules and regulations regarding mining operations within the national forests”); United States v. Richardson, 599 F.2d 290 (9th Cir.1979), cert. denied, 444 U.S. 1014[, 100 S.Ct. 668, 62 L.Ed.2d 643] (1980) (recognizing the conflict between mining and forest land policies and holding that the district court may properly enjoin unreasonable destruction of surface resources). United States v. Goldfield Deep Mines Co., 644 F.2d 1307, 1309 (9th Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1252, 71 L.Ed.2d 445 (1982). In Goldfield and several other cases, this court has upheld Forest Service authority to regulate mining operations in national forests by requiring miners to submit for approval operating plans for their proposed operations. See United States v. Weiss, 642 F.2d 296, 298 (9th Cir.1981); United States v. Doremus, 888 F.2d 630, 632 (9th Cir.1989), cert. denied, 498 U.S. 1046, 111 S.Ct. 751, 112 L.Ed.2d 772 (1991). Cf. United States v. Richardson, 599 F.2d 290 (9th Cir.1979), cert. denied, 444 U.S. 1014, 100 S.Ct. 663, 62 L.Ed.2d 643 (1980). In reaffirming the Forest Service’s authority to regulate mining, the Doremus court rejected a miner’s contention that conduct “reasonably incident[al]” to mining could not be so regulated. Doremus, 888 F.2d at 632. In light of the broad language of § 551’s grant of authority, § 478’s clarification that activities of miners on national forest lands are subject to regulation under the statute, and this substantial body of case law, there can be no doubt that the Department of Agriculture possesses statutory authority to regulate activities related to mining — even in non-wilderness areas — in order to preserve the national forests. 16 U.S.C. § 551. As noted above, plaintiffs argue that because the permissibility of motor-vehicle access may affect whether a claim is deemed to be “valid,” the issue of access is different from other matters that the Forest Service may permissibly regulate. Plaintiffs contend that means of access go to the validity of the claim and, as such, are committed to the jurisdiction of Interior. Rejecting this argument, the district court wrote: I find that it is the nature of the issue presented (i.e. mode of access), not the effect of the determination which determines the appropriate agency forum. Thus, the fact that the Forest Service’s rejection of a particular method of access may have a “material impact” on the mining claim activity does not transform the determination from one within the province of the Forest Service to one within the exclusive province of the Interior Department. ER at 218 (emphasis in original). We concur in this conclusion. Virtually all forms of Forest Service regulation of mining claims— for instance, limiting the permissible methods of mining and prospecting in order to reduce incidental environmental damage— will result in increased operating costs, and thereby will affect claim validity, for the reasons explained above. See supra note 7. However, the above case law makes clear that such matters may be regulated by the Forest Service, and plaintiffs have offered no compelling reason for distinguishing means of access issues from other such forms of regulation. Plaintiffs also invoke the doctrine of “primary jurisdiction” as supporting their claim that the challenged Forest Services actions are unauthorized. The doctrine of primary jurisdiction holds that where it is evident that “Congress, in enacting a regulatory scheme, intends an administrative body to have the first word on issues” in a particular field, courts should abstain from adjudicating such issues when raised in cases before them, and instead should obtain an adjudication of the issue from the relevant administrative body in a manner similar to a federal court’s certifying a question to a state court. United States v. General Dynamics Corp., 828 F.2d 1356, 1362 (9th Cir.1987). As an initial matter, we note that the doctrine is usually applied to determine whether a federal court may adjudicate an issue. In contrast, plaintiffs’ contention here is that primary jurisdiction is vested in one federal agency — Interior—such that adjudication of related issues by another federal agency— Agriculture — is precluded. In any event, assuming that the doctrine can apply in such contexts, it is quite clear that it has no applicability here. Whether such primary jurisdiction exists in a particular agency is a question of congressional intent, since Congress is free to allocate such authority as it chooses. See General Dynamics, 828 F.2d at 1363 n. 13 (noting “[t]he importance of ensuring Congressional intent to place the initial consideration of an issue with an agency before finding that judicial deferral is warranted”). Courts of this circuit have construed the Forest Service’s Organic Act as evidencing a congressional intent to authorize the Service to regulate mining activities on national forest lands. See discussion supra. Thus, there can be no question of Agriculture’s impinging on Interior’s primary jurisdiction. For the above reasons, we affirm the district court’s ruling that the Forest Service enjoys authority to regulate access to mining claims located within national forest lands, and hold that that authority extends both to national forest lands that have been designated wilderness areas and those that have not. IV. EXHAUSTION OF ADMINISTRATIVE REMEDIES WITH RESPECT TO THE WILSON CLAIM The district court ruled that judicial review of the Forest Service’s actions regarding the Wilson claim was not available on the ground that plaintiffs had failed to exhaust their administrative remedies with respect to that claim. Plaintiffs challenge that ruling on appeal. A. THE CHALLENGED FOREST SERVICE ACTIONS Regarding the Wilson claim, plaintiffs object to the Forest Service’s (1) failure to approve motorized access to the claim, and (2) failure to approve a plan of operations while plaintiffs’ appeal of the BLM’s ruling that the claim was not valid was pending in Interior. As recounted above, plaintiffs made three different filings with the Forest Service in their attempt to begin mineral exploration on the Wilson claim: a plan of operations, a revised plan of operations, and a notice of intent to file yet another plan of operations. On June 6,1990, the BLM ruled the Wilson claim null and void. SER at 34. Plaintiffs appealed that ruling to the Interior Department Bureau of Land Appeals. SER at 37. However, at no point did plaintiffs attempt to appeal with the Forest Service the District Ranger’s refusal to approve the two submitted plans of operations. B. EXHAUSTION REQUIREMENTS UNDER THE APA As noted above, this lawsuit for review of the legality of federal agency action is brought by plaintiffs pursuant to the APA. See supra note 5. Under the APA, review is available where the challenged agency action is “final.” In addition, under the related but distinct doctrine of “exhaustion,” an appeal to “superior agency authority” is a prerequisite to judicial review [under the APA] ... when expressly required by statute or when an agency rule requires appeal before review and the administrative action is made inoperative pending that review. Darby v. Cisneros, — U.S. -, -, 113 S.Ct. 2539, 2548, 125 L.Ed.2d 113 (1993). C. THE FOREST SERVICE ADMINISTRATIVE REGULATORY SCHEME The Forest Service regulations governing the surface use of national forest lands in connection with operations on mining claims provide that, with certain exceptions, “a notice of intent to operate is required from any person proposing to conduct operations which might cause disturbance of surface resources.” 36 C.F.R. § 228.4(a). If the District Ranger determines that the proposed operations are likely to cause a “significant disturbance of surface resources,” the operator must file a proposed plan of operations. Id. The District Ranger’s decision to require a plan is not directly appealable, because it is not a decision relating to “issuance, denial, or administration of [particular] written instruments to occupy and use National Forest System lands.” 36 C.F.R. §§ 251.82 & 228.14. Rather, to challenge a decision requiring that a plan be filed, a person must first comply and file a plan. Decisions relating to approval of a plan may then be appealed. 36 C.F.R. § 251.82(a)(4). The regulations specifically provide that it is the position of the Forest Service that, for decisions appealable under the regulations, exhaustion should be required before an aggrieved party may seek federal court review. 36 C.F.R. § 251.101. D. ANALYSIS The district court ruled that the District Ranger’s response to plaintiffs’ 1990 notice of intent to file a plan of operations was not a final order under the regulations and therefore was not appealable under the APA. ER at 158. This holding appears correct, see Franklin v. Massachusetts, — U.S. -, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992), and plaintiffs have not challenged it on appeal. As for the District Ranger’s refusal to act on the actual proposed plans of operations submitted by plaintiffs in, 1988 and 1989, the district court ruled that that action — or inaction — was not reviewable on the ground that plaintiffs had failed to exhaust their administrative remedies regarding it. ER at 157. The court’s conclusion that the District Ranger’s failure to act was appealable under the Forest Service regulations appears correct, and the parties do not contest it. As noted above, that Forest Service regulations require exhaustion for those Service rulings that are appealable under the regulations. 36 C.F.R. § 251.101. Thus, under Darby, there is an exhaustion requirement that plaintiffs have not satisfied. See Doremus, 888 F.2d at 632 (exhaustion required in order to obtain judicial review under APA of Forest Service action on plan of operations). Recognizing this, plaintiffs sought to avoid dismissal by arguing that the so-called “futility” exception to the exhaustion requirement applies in this case. BB at 42-45; GB at 20. Cases in this circuit such as El Rescate Legal Serv. v. EOIR, 959 F.2d 742 (9th Cir.1992), have held that there is no requirement of exhaustion where resort to the agency would be futile. SAIF Corp./Oregon Ship v. Johnson, 908 F.2d 1434, 1441 (9th Cir.1990).... [WJhere the agency’s position on the question at issue “appears already set,” and it is “very likely” what the result of recourse to administrative remedies would be, such recourse would be futile and is not required. Id. El Rescate, 959 F.2d at 747. Plaintiffs argue that, with respect to the Wilson claim, it would have been futile for them to pursue an administrative appeal challenging the Forest Service’s policy of not approving plans of operations until claim validity is ascertained by Interior. They argue that the fact that the Forest Service had already expressed an agency position on this issue in the Forest Service’s ruling denying plaintiffs’ appeal in the case of the Robert E. claims showed that appealing the District Ranger’s refusal to act on the Wilson claim plan of operations would have been a futile gesture. BB at 42-45. We concur in the district court’s conclusion that the futility exception to the exhaustion requirement does not apply in this ease on these facts. In its ruling denying plaintiffs’ administrative appeal in the Robert E. case, the Forest Service cited as authority for its decision an administrative rule published in the Forest Service Manual that provides that the Forest Service will not approve a plan of operations for claims located in federal wilderness areas until it determines the claim at issue is valid. See Forest Service Manual § 2816. However, as discussed above, the Wilson claim, although located in a national forest, is not in a wilderness area. Thus, the rule and reasoning on which the Forest Service relied in its ruling on the Robert E. ease are clearly of no applicability in the case of the Wilson claim. As such, the Service’s ruling in the Robert E. case does not demonstrate that the “agency’s position on the question at issue ‘appears already set’ ” as is required for the futility exception to apply. We thus affirm the district court’s dismissal of plaintiffs’ claims involving the Wilson claim for failure to exhaust. Y. SUBSTANTIVE VALIDITY OF THE FOREST SERVICE’S DECISIONS UNDER THE APA In addition to challenging the Forest Service’s authority to regulate access to mining claims, plaintiffs challenge the Service’s particular rulings and actions on the merits, charging that they are otherwise illegal. The district court rejected all of these arguments, and plaintiffs challenge those rulings on appeal. As we have affirmed the district court’s dismissal of plaintiffs claims regarding the Wilson claim for failure to exhaust, remaining before us is only the legality of the Service’s actions with respect to the Robert E. and Thunderbolt claims, both of which are located on national forest wilderness lands. As explained above, see supra note 5, aside from their constitutional claims which are discussed later, plaintiffs’ claims must be construed as having been asserted under the APA. We shall therefore treat plaintiffs’ arguments as being asserted under the APA, although plaintiffs sometimes have not framed them this way in their pleadings. A. THE ROBERT E. CLAIM: FOREST SERVICE RULING REFUSING TO APPROVE MOTORIZED ACCESS PENDING FINAL DETERMINATION OF CLAIM VALIDITY BY THE DEPARTMENT OF THE INTERIOR 1. FOREST SERVICE RULING As explained above, in approving a plan of operations for the Robert E. claim, the Forest Service modified the plan so as to prohibit use of motorized transport to access the claim during the period while the claim’s validity was being evaluated by the Department of the Interior. SER at 56-57. That ruling was affirmed on appeal by the Forest Service. SER at 58-61. 2. ANALYSIS OF GROUNDS ON WHICH PLAINTIFFS CHALLENGE FOREST SERVICE RULING In the district court, and again on appeal, plaintiffs challenge this ruling, alleging that it violated Interior Department regulations and the Forest Service’s own regulations. Charging that these regulations require the Forest Service to apply the same motorized access standard to all mining claims unless and until they are held invalid by Interior, plaintiffs contend that the Service has “unlawfully withheld or unreasonably delayed” such action, in violation of § 706(1) of the APA. As noted earlier, the challenged rulings regarding motorized access are made pursuant to authority conferred on the Agriculture Department under 16 U.S.C. § 1134(b), which provides that In any case where valid mining claims or other valid occupancies are wholly within a designated national forest wilderness area, the Secretary of Agriculture shall, by reasonable regulations consistent with the preservation of the area as wilderness, permit ingress and egress to such surrounded areas by means which have been or are being customarily enjoyed with respect to other such areas similarly situated. (Emphasis added). Exercising that authority, Agriculture has promulgated regulations that provide, in pertinent part (b) Holders of unpatented mining claims validly established on any National Forest Wilderness prior to inclusion of such unit in the National Wilderness Preservation System shall be accorded the rights provided by the United States mining laws as then applicable to the National Forest land involved_ Persons conducting operations as defined in § 228.3 in National Forest Wilderness shall comply with the regulations in this part. Operations shall be conducted so as to protect National Forest surface resources in accordance with the general purpose of maintaining the National Wilderness Preservation System unimpaired for future use and enjoyment as wilderness and to preserve its wilderness character, consistent with the use of the land for mineral location, exploration, development, drilling, and production ..., including, where essential, the use of mechanized transport, aircraft or motorized equipment (c) Persons with valid mining claims wholly within National Forest Wilderness shall be permitted access to such surrounded claims by means consistent with the preservation of National Forest Wilderness which have been or are being customarily used with respect to other such claims surrounded by National Forest Wilderness. No operator shall construct roads across National Forest Wilderness unless authorized in writing by the Forest Supervisor in accordance with § 228.12. 36 C.F.R. § 228.15 (emphasis added). The Forest Service construes the references to “validity” contained in the statute and in the agency’s own implementing regulations as meaning that the access referred to need only be granted if and when it is determined that the claim in question is, in fact, “valid.” See Forest Service Manual § 2816. Plaintiffs argue that this interpretation runs counter to Interior Department regulations and to the Forest Service’s own regulations. Plaintiffs cite 43 C.F.R. § 4.21(a), a regulation establishing certain procedures applicable in Interior Department administrative proceedings. It provides Effect of decision pending appeal. Except as otherwise provided by law or other pertinent regulation, a decision will not be effective during the time in which a person adversely affected may file a notice of appeal, and the timely filing of a notice of appeal will suspend the effect of the decision appealed from pending the decision on appeal. 43 C.F.R. § 4.21(a) (1992). Plaintiffs argue that this regulation requires the Forest Service to hold off on treating any claim as invalid unless and until an Interior Department ruling of invalidity has been affirmed after administrative appeal. The district court rejected this argument, reasoning that Plaintiffs have misconstrued the meaning of this regulation. Section 4.21 sets forth general rules concerning the appeals process within the Interior Department. Plaintiffs present no authority to establish that, under § 4.21(a), the effect of a decision of the Department of Agriculture is stayed by the initiation of contest proceedings before the Interior Department. In the absence of decisional or statutory law, I cannot interpret a government regulation in a manner inconsistent with its shared objective. ER at 167. We concur in this conclusion. The Interior department regulation does not purport to instruct other agencies such as Agriculture about how to treat putative mining claims during the pendency of appeals in validity proceedings. Moreover, even if the regulation did purport to do so, plaintiffs have cited no authority for the proposition that one agency may promulgate regulations that bind another agency in that way. The issue here concerns how an agency should treat a putative claim during the interim while validity is being assessed. Interior has taken one position, Agriculture another, and we see no reason why such a divergence is impermissible as a matter of law. Plaintiffs further argue that the policy of refusing to approve motorized access while validity proceedings are pending runs contrary to the Forest Service’s own regulations codified at 36 C.F.R. § 228.5(a). Plaintiffs apparently construe the Forest Service refusal to approve motorized claim access until validity is established as a policy whereby plans of operations proposing motorized access are not acted on while validity is being investigated. This, they reason, violates Forest Service regulations regarding timely processing of plans of operations. However, this argument is predicated on a faulty assumption. As the record in the Robert E. case demonstrates, the Forest Service did rule in a timely fashion on the proposed plan of operation. The Forest Service, wielding its authority under 36 C.F.R. § 228.5(a)(3), approved the plan subject to certain modifications, among these being that only non-motorized access would be permitted while validity is pending. See SER at 56. Thus, the challenged policy is not inconsistent with these procedural provisions. Finally, plaintiffs argue that the policy of refusing to approve motorized access while validity proceedings are pending violates plaintiffs’ property rights in the mining claim. Plaintiffs cite eases including United States v. Barrows, 404 F.2d 749 (9th Cir.1968), cert. denied, 394 U.S. 974, 89 S.Ct. 1468, 22 L.Ed.2d 754 (1969), for the proposition that [the miner’s] right to the claim, unless and until the claim is finally declared void, is a property right. Id. at 752 (citing Adams v. Witmer, 271 F.2d 29, 33 (9th Cir.1958)). However, insofar as plaintiffs mean to argue that the Forest Service’s policy infringes their property right in the .claim without due process in violation of the Fifth Amendment, that issue is addressed below. Similarly, if plaintiffs mean to assert that they have had this property interest abridged in violation of the takings clause of the Fifth Amendment, that argument too is addressed below. As plaintiffs have not called to the court’s attention any statute that would prohibit the challenged policy, we affirm the district court’s entry of summary judgment for defendants on plaintiffs’ claim that the policy amounted to “unlawfully withheld or unreasonably delayed” agency action, in violation of § 706(1) of the APA. We hold that the Forest Service policy of refusing to approve motorized access to claims located in national forest wilderness lands, unless and until claim validity is established, is consistent with the governing statutes and agency regulations and thus is valid and enforceable. B. THE THUNDERBOLT CLAIM: FOREST SERVICE RULING DENYING MOTORIZED ACCESS 1. BACKGROUND: THE FOREST SERVICE ACCESS REGULATIONS As noted above, Forest Service regulations provide that miners should be permitted access to claims that are surrounded by national forest wilderness lands “by means consistent with the preservation of National Forest Wilderness which have been or are being customarily used with respect to other such claims,” 36 C.F.R. § 228.15(e) (emphasis added), and that “the use of mechanized transport ... or motorized equipment” need not be permitted unless “essential” to mining activities. 36 C.F.R. § 228.15(b) (emphasis added). As these regulations draw their operative language nearly verbatim from the statute, there can be no question that the regulations are a valid exercise of the agency’s delegated rulemaking authority. However, plaintiffs challenge on other grounds the validity of the Forest Service’s application of these regulations in the case of the Thunderbolt claim. 2. FOREST SERVICE RULINGS In its 1989 ruling on plaintiffs’ appeal of its denial of permission for motorized access to the Thunderbolt claim, the Forest Service found (1) that the trails that plaintiffs proposed to use for motorized access to the claim had not been used by motor vehicles since the area was designated a wilderness area in 1984, ER at 84; and (2) that the scope of the proposed operation was relatively small, and that consequently the volume of material and equipment that would need to be transported to the claim was not great. ER at 85. On the basis of these findings, the Service concluded that motorized access was not “essential” for the operation of the claim under 36 C.F.R. § 228.15(b), and therefore reaffirmed its earlier denial. ER at 85. In the second 1990 appeal of the same ruling, the Forest Service further found that the scope of the proposed operation was relatively small, and that the equipment that plaintiffs proposed using — a five-inch suction dredge — was sufficiently small in size that it could be transported using pack horses. (A five-inch dredge had been carried in by pack horse when the claim was examined by the Forest Service to assess its validity.) On the basis of this finding, the Service concluded that motorized access was not being “customarily used with respect to other such claims,” and that therefore motorized access need not be granted under 36 C.F.R. § 228.16. ER at 97. Plaintiffs also argued that the existing trails that they proposed to expand and then use to gain motorized access to the claim were public right-of-ways under Revised Statutes (“R.S.”) § 2477. On this basis, they contended that the Forest Service could not preclude them from using the trails to gain motorized access to their claim and that, moreover, they were exempted from having to obtain Forest Service approval of their plan to use the trails under 36 C.F.R. § 228.4(a), which states: The requirements to submit a plan of operations shall not apply: (i) To operations which will be limited to the use of vehicles on existing public roads or roads used and maintained for National Forest purposes. In its 1989 ruling on the first appeal, the Forest Service rejected this argument on the ground that the trails in question did not qualify as public highways under the legal standard applied under R.S. § 2477. ER at 84. In its 1990 ruling on the second appeal, the Service also ruled that, in any event, the 36 C.F.R. § 228.4(a) exemption from the requirement to submit a plan of operations did not apply because plaintiffs’ proposed mining plan was not limited to existing roads, but rather would involve clearing trails that had not been used for ten years to restore them to a state in which motor vehicles could travel them. ER at 96. 3. ANALYSIS OF GROUNDS ON WHICH PLAINTIFFS CHALLENGE FOREST SERVICE RULINGS Plaintiffs challenge the above rulings on various grounds. First, they challenge the fact-finding on the basis of which the Service concluded that motorized access was neither “essential” to the operation of the claim under 36 C.F.R. § 228.15(b), nor “customarily used with respect to other such claims” under 36 C.F.R. § 228.15(c). However, federal court review of agency fact-finding — other than fact-finding made in the course of formal adjudications which the instant proceedings are not — is conducted under the deferential “arbitrary and capricious” standard, pursuant to 706(2)(A) of the APA. Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568, 1571 (9th Cir.1993); II Davis & Pierce, Administrative Law Treatise § 11.4 (3d ed. 1994). Under this deferential mode of review, the court is called upon to determine only whether the [agency’s] decisions ... were “based on a consideration of the relevant factors” and did not betray “clear errors in judgment.” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378[, 109 S.Ct. 1851, 1861, 104 L.Ed.2d 377] (1989). Review under this standard is to be “searching and careful,” but remains “narrow,” and a court is not to substitute its judgment for that of the agency. Id. Mt. Graham, 986 F.2d at 1571. As explained above, the Forest Service concluded, based on the fact that the Service’s own examiner had carried in a five-inch dredge by pack horse when evaluating the claim, and the fact that the operation proposed was a small one for which plaintiffs also planned to use a five-inch dredge, that motorized access was not “essential” to the mining operation under 36 C.F.R. § 228.15(b). Regarding the “customarily used” standard of 36 C.F.R. § 228.15(c), the record also shows that the access trails plaintiffs proposed using have been blocked by a gate and closed to traffic since 1984. Since that date the trails have not been maintained by the Forest Service, and consequently they are returning to a natural condition. See ER at 172-73. Moreover, plaintiffs have pointed to no evidence in the administrative record that would tend to show motorized access is, in fact, “essential” to the operation of this claim or is “customarily used with respect to other such claims.” In the absence of such record evidence, there can be no question but that the challenged agency ruling holding that motorized access is not required under 36 C.F.R. § 228.15 is not arbitrary and capricious in violation of § 706(2)(A) of the APA. Plaintiffs also argued in the district court that the Forest Service acted improperly in ruling that the trails in question do not qualify as public highways under R.S. § 2477. Plaintiffs assert that authority to decide whether roads qualify as public highways under R.S. § 2477 is vested in the Department of the Interior. The district court rejected that contention, ruling the Forest Service may properly rule on such issues in the course of carrying out its duty to review and approve plans of operations. ER at 170. Plaintiffs raise this argument again on appeal, charging that the Forest Service improperly ruled on this issue which might otherwise afford them a legal basis for circumventing the Service’s ban on motorized access. We interpret this argument as a claim that the Forest Service’s ruling regarding the Thunderbolt claim was “in excess of statutory jurisdiction, authority, or limitations,” in violation of § 706(2)(C) of the APA. We reject this claim on the ground urged by the government in its brief on appeal: that regardless whether the trails in question are public highways under R.S. § 2477, they are nonetheless subject to the Forest Service regulation. This court held in United States v. Vogler, 859 F.2d 638 (9th Cir.1988), cert. denied, 488 U.S. 1006, 109 S.Ct. 787, 102 L.Ed.2d 779 (1989), that the statutory authority conferred on the National Park Service under 16 U.S.C. § 1 to regulate national parks empowers the Park Service to regulate the use of R.S. § 2477 roads that are located within park areas. 859 F.2d at 642. As 16 U.S.C. § 551 confers on the Department of Agriculture similar authority to regulate national forest areas, Vogler indicates that encompassed within that grant is the authority to regulate use of R.S. § 2477 roads where such is necessary to carry out Agriculture’s statutory duty to protect national forests against “depredations.” Finally, plaintiffs challenge the Forest Service ruling as violating certain provisions of the mining laws. We interpret this argument as a claim that the ruling was “in excess of statutory jurisdiction, authority, or limitations,” in violation of § 706(2)(C) of the APA, or else “not in accordance with law,” in violation of § 706(2)(A) of the APA. Plaintiffs cite 30 U.S.C. § 612(b), which provides, in pertinent part Rights under any mining claim ... shall be subject, prior to issuance of patent therefor, to the right of the United States to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof.... Any such mining claim shall also be subject, prior to issuance of patent therefor, to the right of the United States, its permittees, and licensees, to use so much of the surface thereof as may be necessary for such purposes or for access to adjacent land: Provided, however, That any use of the surface or any such mining claim by the United States, its permittees or licensees, shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incidental thereto.... (Emphasis added). Plaintiffs argue that motorized access to the claim is “[a] use[ ] reasonably incidental [to mining]” and that the Service’s ruling “materially interfered with” that use in violation of this provision. Plaintiffs’ position seems to be that Forest Service actions regulating access to claims located within national forest lands must comply not only with the “means ... customarily enjoyed” standard of 16 U.S.C. § 1134(b) and 36 C.F.R. § 228.15(c), and the “where essential” standard of 36 C.F.R. § 228.15(b), but also with the “materially interfere” standard of 30 U.S.C. § 612. It is true our circuit has held that Forest Service regulation of activities on mining claims must comport with the standard set out in 30 U.S.C. § 612. See United States v. Doremus, 888 F.2d 630, 633 (9th Cir.1989) (upholding Forest Service requirement that claim holders obtain permit before beginning operations on grounds that such Forest Service regulation did not “materially interfere” with mining operation), cert. denied, 498 U.S. 1046, 111 S.Ct. 751, 112 L.Ed.2d 772 (1991). However, by its terms, 30 U.S.C. § 612 addresses only “use of the surface of any ... mining claim by the United States” (emphasis added). We see no basis for construing the statute as limiting Forest Service regulation of activities on national forest lands outside of the boundaries of the mining claim, particularly in view of the fact that Congress subsequently enacted a statute specifically addressing that issue — 16 U.S.C. § 1134(b). We therefore affirm the district court’s rejection of this argument on the ground that the “materially interfere” standard of 30 U.S.C. § 612 does not apply to actions taken by the government to regulate mining-related activities that occur on national forest lands outside of the boundary of the mining claim. VI. TAKINGS CLAIM Plaintiffs also argue the Forest Service’s denial of motorized access to their claims effects a taking of private property for public use without just compensation in violation of the Takings Clause of the Fifth Amendment. The district court concluded that the takings claim failed because it was not ripe and because, even if it were, subject matter jurisdiction over it would likely lie in the U.S. Court of Federal Claims. Plaintiffs argue that the district court erred in ruling that jurisdiction over their takings claim lies exclusively in the Court of Claims. 28 U.S.C. § 1346(a)(2), the “Little” Tucker Act, vests the district courts • with jurisdiction to hear suits alleging constitutional claims against the United States so long as the plaintiff does not seek damages in excess of $10,000. Plaintiffs contend that since they seek only injunctive and declaratory relief in this action, jurisdiction over their takings claim may properly lie in the district court. The Supreme Court has instructed that Equitable relief is not available to enjoin an alleged taking of private property for a public use, duly authorized by law, when a suit for compensation can be brought against the sovereign subsequent to the taking. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 697 n. 18[, 69 S.Ct. 1457, 1465 n. 18, 93 L.Ed. 1628] (1949). The Fifth Amendment does not require that compensation precede the taking. Hurley v. Kincaid, 285 U.S. 95, 104[, 52 S.Ct. 267, 269, 76 L.Ed. 637] (1932). Generally, an individual claiming that the United States has taken his property can seek just compensation under the Tucker Act, 28 U.S.C. § 1491. United States v. Causby, 328 U.S. 256, 267[, 66 S.Ct. 1062, 1068, 90 L.Ed. 1206] (1946).(“If there is a taking, the claim is ‘founded upon the Constitution’ within the jurisdiction of the Court of Claims to hear and determine”); Yearsley v. Ross Construction Co., 309 U.S. 18, 21[, 60 S.Ct. 413, 414, 84 L.Ed. 554] (1940). Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-17, 104 S.Ct. 2862, 2879-80, 81 L.Ed.2d 815 (1984). Ruckelshaus thus held that a suit for equitable relief to enjoin a taking cannot be maintained where a post-deprivation suit for damages would be available. Ruckelshaus further held that where an action alleged to be a taking is carried out by the government pursuant to statutory authority, a suit for money damages may be maintained under the Tucker Act unless the statute in question evidences a congressional intent to “withdraw[ ] the Tucker Act grant of jurisdiction to the Court of Claims to hear a [takings] suit involving the [statute].” 467 U.S. at 1017, 104 S.Ct. at 2880 (quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 126, 95 S.Ct. 335, 349, 42 L.Ed.2d 320 (1974) (emphasis in original)). Here, it does not appear, nor have plaintiffs argued, that 16 U.S.C. § 1134(b) or the other statutes pursuant to which the Forest Service has acted evince such a congressional intent to preclude a Tucker Act remedy. In view of that fact, plaintiffs may not maintain a suit for equitable relief, but rather are limited to the exclusive remedy of a suit for money damages under the Tucker Act. Because plaintiffs seek only injunctive and declaratory relief on their takings claim, its dismissal was therefore appropriate. Moreover, even if plaintiffs had sought leave to amend to add a prayer for money damages, jurisdiction over such an amended claim would lie exclusively in the Court of Claims. The “Little” Tucker Act vests the district courts with jurisdiction over suits against the federal government only where plaintiffs seek less than $10,000 in damages. See 28 U.S.C. § 1346(a)(2). Since plaintiffs in their complaint allege damages in excess of $10,-000, see ER at 17, they are disqualified from suing in the district court. We therefore affirm the district court’s dismissal of plaintiffs takings claim on the ground that the district court had no jurisdiction to hear the claim under the Little Tucker Act. As this ground is a wholly adequate basis on which to affirm the district court’s dismissal of this claim, it is not necessary for us to address the ripeness ground on which the district court relied as an additional basis for its dismissal. VII. PROCEDURAL DUE PROCESS CLAIMS Plaintiffs also argue that because they were accorded no hearing before the Forest Service issued its rulings refusing to approve motorized access to the claims, their due process rights were violated. The magistrate’s findings and recommendations and the district court opinion do not expressly address this claim. However, as it is clear that the claim fails as a matter of law, we may nonetheless affirm the district court’s entry of summary judgment for defendants on this claim. The Due Process Clause of the Fifth Amendment forbids the federal government from depriving persons of “life, liberty, or property, without due process of law.” Since life and liberty are not at issue in this ease, a threshold question relevant to whether plaintiffs can state a due process claim is whether they have been denied a property interest. “An interest must have its source in positive law — state common law, a statute, or a contract — in order to be characterized as ‘property1 for due process purposes.” II Davis & Pierce, Administrative Law Treatise § 9.4, at 27. Thus, in the present context, plaintiffs must have been denied a statutorily conferred “property interest” in order for this threshold requirement to be met. We have concluded above that 30 U.S.C. § 612 does not vest claim holders with a property right to any particular type of access to their claims across national forest wilderness lands surrounding their claims. The only laws imposing substantive standards in this area are 16 U.S.C. § 1314(b) and the Forest Service regulations implementing that statute. Thus, only if those laws confer a property right to motorized access can plaintiffs possibly state a due process claim. It is not necessary for us to resolve this question in order to affirm entry of summary judgment for defendants on this claim. This is the case because, even if plaintiffs had a constitutionally protected property interest in having the statutory access standard fairly and accurately applied, it seems sufficiently clear that the procedural protections provided by the Forest Service would satisfy constitutional requirements for such proceedings. The specific aspects of the Forest Service procedures that plaintiffs object to are (1) the Service’s failure to provide an evidentiary hearing at the initial decision stage, requiring instead that pleadings and evidence be submitted in written form; (2) the alleged inadequacy of the Forest Service’s explanation of the reasons for its rulings; and (3) the Service’s failure to provide for an evidentiary hearing at the administrative appeal stage. BB at 38-39. The complaint regarding the reasons offered by the Forest Service for its decisions surely has no merit, for the Service’s administrative rulings on plaintiffs’ administrative appeals offered detailed explanations and cited specific statutes and regulations as authority. As to the complaint regarding the Service’s failure to provide evi-dentiary hearings, plaintiffs cite Pence v. An-drus, 586 F.2d 733 (9th Cir.1978), for the proposition that evidentiary hearings are required by due process. However, Pence, which addressed the due process requirements for BLM administrative proceedings adjudicating Native Alaskan land rights, held that informal oral evidentiary hearings were required in such cases only because many of the claimants involved were poorly educated, unsophisticated persons who would not be able to comply with complicated formal pleading requirements. Id. at 741. As here there is no record evidence showing, nor reason to believe, that holders of mining claims are similarly unable to pursue their claims by filing written pleadings, Pence is inapposite. Because plaintiffs have cited no authority showing that the Forest Service’s detailed administrative procedures — which include provisions for administrative appellate review of agency decisions, see 36 C.F.R. §§ 251.80-251.101 — do not conform with procedural due process requirements, we affirm the district court’s grant of summary judgment for defendants on this claim. VIII. CONCLUSION For the foregoing reasons, the district court’s decision granting summary judgment for defendants on all counts, and denying summary judgment for plaintiffs is AFFIRMED. . The Mining Act of 1872, 30 U.S.C. § 22, provides, in pertinent part, that Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States ... shall be free and open to exploration and purchase.... Construing this provision, the Supreme Court has held, however, that This section is not as comprehensive as its words separately considered suggest.... [I]t is apparent that, while embracing only lands owned by the United States, it does not embrace all that are so owned.... Only where the United States has indicated that the lands are held for disposal under the land laws does the section apply; and it never applies where the United States directs that the disposal be only under other laws. Oklahoma v. Texas, 258 U.S. 574, 599-600, 42 S.Ct. 406, 415-16, 66 L.Ed. 771 (1922). See Brown v. U.S. Dep’t of the Interior, 679 F.2d 747, 750-51 (8th Cir.1982). . An "unpatented" claim is a possessory interest in a particular area solely for the purpose of mining; it may be contested by the government or a private party. By contrast, if a claim is patented, the claimant gets a fee simple interest from the United States and no contest can be brought against the claim. See Northern Alaska Envtl. Ctr. v. Lujan, 872 F.2d 901, 904 n. 2 (9th Cir.1989). . The following abbreviations are used through this opinion; BB = Blue Brief (plaintiffs' initial brief) RB = Red Brief (the government's opposition brief) GB = Gray Brief (plaintiffs' reply brief) ER = Excerpts of Record ER = Supplemental Excerpts of Record .Mining claims located on withdrawn lands are invalid. See United States v. Consolidated Mines & Smelting Co., 455 F.2d 432, 444 (9th Cir.1971). . In this case, plaintiffs challenge the Forest Service's actions on numerous grounds. Among these are two claims — challenges to arbitrary and capricious agency action and to wrongly withheld agency action — that plaintiffs describe as being asserted under the Administrative Procedure Act, 5 U.S.C. §§ 701-706. See BB at 31-34. However, it is equally the case that plaintiffs' other arguments against the challenged actions — that they were taken without statutory authority, or that they violate statutory standards— should also be regarded and treated as claims under the APA. This is because the APA is a framework statute that provides the generally applicable means for obtaining judicial review of actions taken by federal agencies. Generally, except where a party challenges an agency action as violating a federal law — be it a statute, regulation, or constitutional provision — that has been interpreted as conferring a private right of action, or where a particular regulatory scheme contains a specialized provision for obtaining judicial review of agency actions under the scheme, review under a framework statute such as the APA is the sole means for testing the legality of federal agency action. See Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir.1988). Of the laws that plaintiffs charge the challenged Forest Service decisions violate, only the constitutional provisions confer private rights of action such that parties may sue directly under them and need not proceed under the APA for those claims. See Broughton Lumber Co. v. Yeut-ter, 939 F.2d 1547, 1556 (Fed.Cir.1991) (takings clause of U.S. Constitution is self-executing). All of plaintiffs' other claims must be brought under the APA. The APA instructs: The reviewing court shall— (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be— (A)arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional rights, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law.... 5 U.S.C. § 706. Thus, the instant claim challenging the Forest Service rulings as issued without statutory authority should be construed as a claim challenging agency action "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right” under 5 U.S.C. § 706(2)(C). . "A mining claimant has the right to possession of a claim only if he has made a mineral discovery on the claim.” Lara v. Secretary of Interior, 820 F.2d 1535, 1537 (9th Cir.1987). A "discovery” is defined as having occurred in circumstances Where minerals have been found and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine.... Chrisman v. Miller, 197 U.S. 313, 322, 25 S.Ct. 468, 470, 49 L.Ed. 770 (1905), quoted in Lara, 820 F.2d at 1541. The Supreme Court subsequently refined this prudent person test, holding that “profitability is an important consideration in applying the prudent-[person] test.” United States v. Coleman, 390 U.S. 599, 602, 88 S.Ct. 1327, 1330, 20 L.Ed.2d 170 (1968), quoted in Lara, 820 F.2d at 1541. Thus, the profitability of a putative claim can affect whether the claim is found to be valid. . The Secretary of Agriculture shall make provisions for the protection against destruction by fire and depredations upon the public forests and national forests which may have been set aside or which may be hereafter set aside ... and he may make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction.... 16 U.S.C. § 551. . Nothing in section[] ... 551 of this title shall be construed as prohibiting ... any person from entering upon such national forests for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof. Such persons must comply with the rules and regulations covering such national forests. 16 U.S.C. § 478 (emphasis added). . This conclusion is supported by the only case addressing a similar issue cited by the parties. That case, United States v. Fuller, No. CIV-S-83-850-LKK, (E.D.Cal. Aug. 28, 1987) (Karlton, J.), ER at 175, concerned a cabin that holders of a mining claim located within a national forest wilderness area had built in connection with their claim. Acting pursuant to its regulations issued under 16 U.S.C. § 551, the Forest Service had ordered the claim holders to remove the cabin. The claim holders argued that the Forest Service's regulations and the challenged action impinged on the Interior Department’s zone of regulatory authority regarding mining claims, and therefore were invalid. The Fuller court rejected this contention, finding that the challenged regulations are wholly consistent with the statutory authority of the Secretary of Agriculture, and so long as their application does not result in a declaration of the validity or invalidity of a mining claim, they do not usurp upon the powers delegated to the Secretary of the Interi- or. Fuller, slip op. at 23-24, ER at 197-98. Fuller is thus authority for the proposition that, where there exists statutory authority for them to do so, agencies other than Interior may regulate matters related to mining activities so long as they do not purport to adjudicate the validity of mining claims, since that is a matter over which adjudicative authority is clearly vested in Interi- or. . Plaintiffs also argue that Interior's procedural rules applicable to agency decisions relating to mining claims are superior to Agriculture's in various respects. BB at 19-21. While this may well be true, it clearly has no bearing on whether Congress has authorized Agriculture to regulate ingress and egress to mining claims located on national forest wilderness lands. . The APA permits review of either (1) "final agency action” or (2) other types of agency action that Congress has specified by statute are judicially reviewable. 5 U.S.C. § 704. However, here there is no contention that any such special, express statutory authorization exists. Thus, APA review is available in this case only if the agency actions in question are “final.” . The District Ranger's refusal to act on plaintiffs' proposed plans of operations appears to qualify as a written decision[] of [a] Forest Service line officer[ 1 related to issuance, denial, or administration of [certain] written instruments to occupy and use National Forest System lands, 36 C.F.R. § 251.82(a), which are defined as including, Approval/non-approval of Surface Use Plans of Operations related to the authorized use and occupancy of a particular site or area. 36 C.F.R. § 251.82(a)(ll). Such rulings are ap-pealable under the Forest Service regulations. . On January 19, 1993, while the instant litigation was pending, the Interior Department abandoned this policy of granting automatic stays of decisions pending administrative appeal. Under an amended regulation issued on that date, such stays must instead be applied for and may be granted or denied in the discretion of the agency. See 43 C.F.R. § 4.21(a) (1993). Since it was the earlier version of the regulation that was in force at the time of the administrative actions challenged in this lawsuit, we review those actions’ legality under the former rule. . Operations shall be conducted in accordance with an approved plan of operations, except as provided in paragraph (b) of this section and in § 228.4(a), (b), and (e). A proposed plan of operation shall be submitted to the District Ranger, who shall promptly acknowledge receipt thereof to the operator. The authorized officer shall, within thirty (30) days of such receipt, analyze the proposal, considering the economics of the operation along with the other factors in determining the reasonableness of the requirements for surface resource protection, and; (1) Notify the operator that he has approved the plan of operations; or (2) Notify the operator that the proposed operations are such as not to require an operating plan; or. (3) Notify the operator of any changes in, or additions to, the plan of operations deemed necessary to meet the purpose of the regulations in this part; or (4) Notify the operator that the plan is being reviewed, but that more time, not to exceed an additional sixty (60) days, is necessary to complete such review, setting forth the reasons why additional time is needed ... 36 C.F.R. § 228.5(a). . We note that the case on which plaintiffs chiefly rely, Barrows, contained a critical qualification to the above-quoted language: It must be remembered, however, that the Government is the underlying property owner and, as such, has interests entitled to protection. Balancing the interests of each, we think the court had power to prevent defendants from causing irreparable damage to the land, pending determination of the validity of defendants' claim. We find nothing in the record which convinces us that the district court abused this power in granting the temporary injunction. Barrows, 404 F.2d at 752. In Barrows, the district court had issued a preliminary injunction restraining the miner from damaging the surface lands and property of a putative claim located in a national forest pending administrative determination of the claim's validity by the Interior Department. Id. at 750. The Barrows court was thus faced with a question strikingly similar to that before us here: whether in mining claims located in national forests, activities on or around the claim that are incidental to mining may permissibly be regulated or prohibited, pending determination of claim validity, in order to protect the claim and surrounding federal lands from damage. And the Barrows court, though holding that such claims constitute property rights "unless and until the claim is finally declared void,” nonetheless answered that question in the affirmative. That ruling is a strong indication that, on the merits, a takings clause challenge to the Forest Service policy of denying motorized access pending determination of claim validity would not succeed, for this court has interpreted the property right in an unvalidated claim as being one that may permissibly be restricted pending determination of validity, in order to guard against damage to the claim and surrounding land. . Section 1346(a)(2) states: The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of ... Any ... civil action or claim against the United States, not exceeding $10,000 in amount, founded ... upon the Constitution....

Smith v. U.S. Forest Service

SCHROEDER, Circuit Judge: This case involves an environmental challenge to a timber sale and harvest, known as the Gatorson Sale, in the Colville National Forest in Washington. The United States Forest Service has authorized the sale to Vaagen Timber Products, a logging company. The plaintiff-appellant, Mitchell Smith, a frequent recreational user of the area affected by the sale, sued both the Forest Service and Vaagen, seeking to enjoin the sale. He contended that the Forest Service’s assessment of the environmental impact of the sale was inadequate under federal law for two reasons. First, he asserted that the area affected by the sale contained in excess of 5,000 contiguous acres of unroaded land that had never been considered by the Forest Service for classification as wilderness. Under the Washington State Wilderness Act (WSWA), Pub.L. No. 98-339, 98 Stat. 299 (1984), and the National Environmental Policy Act of 1969 (NEPA), codified at 42 U.S.C. §§ 4321-4347, such large tracts of “uninventoried” land cannot be developed until wilderness classification has been considered. The agency had determined that the area was not roadless because it was divided, by an unpaved road used by jeeps, into two parcels of less than 5,000 acres each. Smith contended this decision was arbitrary and capricious. Second, Smith asserted that the agency had not, in its NEPA disclosure documents, addressed the effect of the sale on a separate 5,000 acre roadless area partially comprised of inventoried land. Although he acknowledged that this area need not be considered for wilderness classification, he argued that the sale should not have been approved until the Forest Service had considered the impact of logging on this heretofore roadless area. The plaintiff relied upon our decision in National Audubon Soc’y v. United States Forest Serv., 4 F.3d 832 (9th Cir.1993), in which we held that the Forest Service was required, under NEPA, to consider the environmental consequences of a logging operation on previously unroaded, albeit inventoried, expanses of land. The district court ultimately entered summary judgment for the defendants, holding that the agency’s conclusion that the unin-ventoried 5,000 acre expanse was roaded rather than unroaded was not arbitrary and capricious. With respect to Smith’s second contention, the district court held that the WSWA barred its review of the adequacy of the NEPA documents prepared by the agency in connection with its decision to develop an area that includes partially inventoried land that had been released for nonwilderness use by Congress. The district court, however, enjoined most of the logging pending this appeal, which we have expedited. On the first issue, we hold that the district court correctly upheld the Forest Service’s refusal to consider the wilderness option prior to approving the sale. The agency’s determination that the jeep trail known as the “Thompson Ridge Road” was a road under applicable regulations was not arbitrary and capricious. We reverse the district court’s denial of the injunction, however, because we conclude on the second issue that our decision in National Audubon requires the Forest Service to consider the effect of the proposed sale upon a 5,000 acre roadless area even though it includes inventoried land. Background In the Wilderness Act of 1964, Pub.L. No. 88-577, 78 Stat. 890, Congress directed the Department of Agriculture to identify “primitive” lands in the National Forest System and make recommendations to Congress as to those lands deserving of “wilderness” status. See 16 U.S.C. § 1132. The areas ultimately granted wilderness status by Congress must, by law, remain protected and free from development. Id. § 1131. From 1972 to 1979, the Forest Service conducted two inventories, known as RARE I and RARE II, to identify roadless areas in the nation’s forests and to make recommendations to Congress as to which of these areas should be protected and which should be released for nonwilderness uses. National Audubon, 4 F.3d at 834. After the Forest Service completed the RARE II inventory in 1979, we held that the Environmental Impact Statement (EIS) prepared by the agency in connection with its inventory did not comply with NEPA. California v. Block, 690 F.2d 753 (9th Cir.1982). In response, Congress passed several Acts, including the Washington State Wilderness Act (WSWA), Pub.L. No. 98-339, 98 Stat. 299 (1984), granting wilderness status to some of the land inventoried pursuant to RARE II, and releasing the remainder of the inventoried land for nonwilderness use. To prevent further environmental challenges to its decision to release roadless lands in the Washington National Forest System, Congress directed in the WSWA that RARE II be deemed adequate consideration of the suitability of inventoried land for classification as wilderness. WSWA § 5(b)(2), 98 Stat. at 303. Congress further directed that the wilderness option need not be considered by the agency prior to the development of any parcel of roadless land in the Washington National Forest System that had not been inventoried pursuant to RARE II if the parcel was smaller than 5,000 acres in size. Id. (incorporating WSWA § 5(d)(2)). Thus, under the WSWA, the Forest Service is required to consider the wilderness option pri- or to authorizing development in a roadless area only if (1) the area was not inventoried pursuant to RARE II; and (2) the area is larger than 5,000 acres in size. The Gatorson Planning Area, the tract containing the Gatorson Sale logging sites, is comprised of thousands of acres of land in the Thompson Ridge region of the Colville National Forest. The western half of the Gatorson Planning Area occupies part of a large parcel of land that was inventoried pursuant to RARE II and is known as the “Twin Sisters” RARE II Area. The eastern half of the planning area occupies part of a large parcel of uninventoried land, referred to as the “Conn Merkel Area” by the parties. The Twin Sisters Area was released for nonwildemess use in the WSWA, and, since the passage of the WSWA, roads and logging sites have been developed in the area. The Forest Service has acknowledged, however, that roughly two thousand acres along the eastern border of this inventoried land, the border adjacent to the Conn Merkel Area, are currently unroaded. The Conn Merkel Area is an uninventoried tract of 6,737 acres. It is bisected by a jeep trail known as Thompson Ridge Road. Authorization of logging sales by the Forest Service involves a two-stage process. First, the agency develops a Forest Plan to establish management goals on a forest-wide basis. Forest Plans may include proposals for specific logging projects and otherwise set management goals for particular regions of the forest. Implementation of the development strategies outlined in Forest Plans occurs at the second stage, in which the Forest Supervisor proposes individual, site-specific projects in accordance with the programmatic Forest Plan. See generally Idaho Conservation League v. Mumma, 956 F.2d 1508, 1511-12 (9th Cir.1992). In order to satisfy its obligations under NEPA, the Forest Service prepares an EIS in connection with each Forest Plan to evaluate the forest-wide environmental effects of the management scheme outlined in the Plan. See id.; 36 C.F.R. §§ 219.10(a)-(c), 219.12(f). At the implementation stage, the agency either prepares a second, site-specific EIS, or, in an EA, makes a finding that the individual project will have no significant environmental impact beyond that discussed in the Forest Plan EIS. In 1988, the Forest Service issued a Forest Plan for the Colville National Forest, which included a schedule for logging activities. The EIS prepared in connection with the Plan specifically analyzed the effects of the proposed sales on the unroaded, inventoried lands in the forest, including the Twin Sisters RARE II Area. Although the Colville Forest Plan EIS did not specifically describe the Conn Merkel Area, the agency concluded in that document that the area surrounding the Twin Sisters Area was, as of 1988, in a roaded condition. Smith did not challenge the sufficiency of, or the conclusions made in, the Forest Plan EIS. The Forest Service did not prepare a second EIS in connection with the Gatorson Sale, but instead, on September 24,1992, issued a final EA finding no significant impact beyond that addressed in the Forest Plan EIS, thus authorizing the sale. Smith sought reconsideration by the agency of the Forest Supervisor’s decision to authorize the sale without preparing a site-specific EIS. On April 12,1993, the decision was upheld. Smith brought this suit in district court on May 18, 1993, against the agency and Vaagen. He sought a preliminary injunction postponing the sale, arguing (1) that the Conn Merkel Area comprised an uninventoried roadless parcel of more than 5,000 acres and therefore had to be considered for possible wilderness designation under the WSWA before the sale; and (2) that the agency had failed to adequately address in its NEPA documents the impact of the sale on 6,000 acres of “roadless resources” that included part of the inventoried Twin Sisters area. The district court initially entered a preliminary injunction, enjoining the sale, and directed the Forest Service to conduct a survey to determine whether the Conn Merk-el Area was in fact an unroaded area of more than 5,000 acres. In response, the agency submitted a report to the court in which it found that the Thompson Ridge Road qualified as a road under agency regulations, and that it bisected the Conn Merkel Area into two separate parcels of less than 5,000 acres each. On December 13, 1993, the court entered summary judgment in favor of the appellees. The court concluded that the agency’s classification of Thompson Ridge Road as a road was not arbitrary and capricious, and that because the sale did not affect a 5,000 acre roadless tract of uninventoried land, the agency’s NEPA documents were sufficient. The court extended its preliminary injunction in part, enjoining timber harvesting on most of the Gatorson logging units pending appeal, but permitting some limited helicopter logging. This court denied Smith’s motion to enjoin all logging, but set this case for expedited appeal. Discussion I. Waiver. The appellees initially contend that Smith has failed to exhaust his administrative remedies because he did not challenge the Forest Service’s decision, in the 1988 Forest Plan, not to classify the Conn Merkel Area as roadless. Smith concedes that he mounted no such challenge to the Forest Plan, but he argues, we conclude correctly, that his failure to challenge factual determinations made in the Forest Plan EIS does not prevent him from challenging the sufficiency of the agency’s NEPA disclosure at the implementation stage. The appellees rely exclusively on Idaho Conservation League v. Mumma, 956 F.2d 1508 (9th Cir.1992). In that case, plaintiffs challenged a Forest Service decision, in a Forest Plan, not to recommend for wilderness designation certain roadless regions in the Idaho Panhandle Forest. Taking a position that is exactly opposite to the position it takes here, the Forest Service argued that the plaintiffs’ challenge would not be ripe until site-specific logging projects were authorized. The agency reasoned that there could be no actionable injury to the plaintiffs until the decision to implement the Plan was made, because, prior to that time, it was not absolutely certain that any logging project would go forward. We rejected this argument, finding that although the project might be halted at the implementation stage, the nonwilderness designation in the Forest Plan worked immediate harm by, at the least, making logging more likely. Id. at 1516. In a passage relied upon heavily by the appellees, we said, if the agency action only could be challenged at the site-specific development stage, the underlying programmatic authorization would forever escape review. To the extent that the plan pre-determines the future, it represents a concrete injury that plaintiffs must, at some point, have standing to challenge, [footnote omitted] That point is now, or it is never. Id. The appellees seize on the “now or never” language from this passage and contend that it represents a determination by this court that site-specific projects proposed in a Forest Plan can only be challenged at the Forest Plan stage. The challenge in Idaho Conservation was to the underlying programmatic Forest Plan development authorization that ensured that certain areas would not be recommended for wilderness classification. Smith, by comparison, challenges the agency’s decision to proceed with a logging sale in a specific area, and he challenges the agency’s alleged failure to comply with its site-specific NEPA disclosure obligations. As we noted in Idaho Conservation, even though initial land-management decisions are made at the Forest Plan stage, the agency must consider a no-action alternative at the site-specific planning stage. Id. at 1515 & n. 14, 1516 n. 16. Therefore, as the district court correctly observed in this ease, logging sales are not a fait accompli at the Forest Plan stage. Idaho Conservation does not prohibit a plaintiff from challenging a specific sale or project, as opposed to a land-management decision or a nonwilderness classification, at the implementation stage. II. The Conn Merkel Area: Roaded or Un-roaded for Purposes of Wilderness Consideration? Under the WSWA, the Department of Agriculture is only required to consider the wilderness option for uninventoried roadless areas of more than 5,000 acres. WSWA § 5(b)(2), 98 Stat. at 303 (incorporating WSWA § 5(d)). It is undisputed that the Conn Merkel Area is larger than 5,000 acres and was not inventoried pursuant to RARE II. The disputed question in this case is whether the Conn Merkel Area is in fact roadless. If it is, it is eligible for wilderness consideration, and the failure of the Forest Service to address the area’s wilderness potential in its NEPA documents is fatal to the proposed logging project. See California v. Block, 690 F.2d 753 (9th Cir.1982); see also Greenpeace Action, 14 F.3d at 1332 (“[a]n agency must prepare an EIS if ‘substantial questions are raised as to whether a project may cause significant degradation of some human environmental factor.’ ”) (quoting LaFlamme v. FERC, 852 F.2d 389, 397 (9th Cir.1988)). Since RARE II, the agency has defined “roadless area” as an area “within which there are no improved roads maintained for travel by means of motorized vehicles intended for highway use.” 1977 Roadless Area Inventory Criteria; see National Audubon, 4 F.3d at 834 n. 1. After an initial hearing in this case, the district court directed the Forest Service to determine whether the Conn Merkel Area satisfies this definition. The agency responded that the Thompson Ridge Road, a jeep trail that bisects the Conn Merkel Area into two parcels of less than 5,000 acres each, qualifies as a road under Forest Service criteria and prevents classification of the Conn Merkel Area as “road-less.” On the basis of the agency’s report, the district court entered summary judgment. Our review is limited to the question of whether the agency’s classification of Thompson Ridge Road as a road was arbitrary and capricious. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 1861, 104 L.Ed.2d 377 (1989); National Audubon, 4 F.3d at 834 n. 6. Smith challenges the agency’s interpretation of the phrase “intended for highway use” as irrational, apparently because of his opinion that a road must be navigable by ordinary passenger vehicles before it can disqualify an area from being classified as roadless. The identification of “roads” in the National Forest System is a task legislatively delegated to the Department of Agriculture, and the agency is in far better position than we are to make these fact-specific determinations. Marsh, 490 U.S. at 375-78, 109 S.Ct. at 1860; see Central Arizona Water Conservation Dist. v. EPA, 990 F.2d 1531, 1539, 1541 (9th Cir.), cert. denied, — U.S. - — , 114 S.Ct. 94, 126 L.Ed.2d 61 (1993). In response to the district court’s directive, Forest Service agents drove the length of Thompson Ridge Road in two four-wheel drive vehicles that were suitable for travel on U.S. interstates. The agency also conducted an historical evaluation and determined that Thompson Ridge Road had been created by bulldozer equipment in the early 1960s, and, periodically, had been maintained by the Forest Service. The agency concluded that the road was maintained for vehicles intended for highway use. After a careful review of the record, which includes photographs of Thompson Ridge Road, we find that the agency’s conclusion, that the Conn Merkel Area is not a roadless area of more than 5,000 acres under the appropriate criteria, is not arbitrary and capricious. Accordingly, we are without jurisdiction to consider Smith’s challenge to the agency’s failure to consider the wilderness option in its NEPA documents. WSWA § 5(b) — (d), 98 Stat. at 303-04. III. Failure to Consider the Effect of the Proposed Sale on Roadless Resources. Smith contends that the NEPA documents prepared by the agency in connection with the Gatorson Sale are inadequate because they fail to address the impact of the sale on a roadless area of more than 6,000 acres to the west of Thompson Ridge Road. This parcel of land is comprised of 4,246 acres of uninventoried land in the Conn Merkel Area as well as about 2,000 acres of inventoried land in the Twin Sisters Area. Under WSWA § 5(b), this court may not review the adequacy of the agency’s consideration of the wilderness option for this land because a portion of the land was inventoried pursuant to RARE II and the remainder is smaller than 5,000 acres. Smith’s argument, however, is that the WSWA does not excuse the agency from considering the effect of a logging project on the roadless character of inventoried land, and does not prohibit this court from reviewing the agency’s failure to do so. The Forest Service acknowledges that the proposed sale will affect a 5,000 acre roadless area. The appellees contend, however, that the WSWA relieves them of any obligation to consider the fact that a proposed project will affect a 5,000 acre roadless area that is partially inventoried and has been released for nonwilderness use. They reason that the sole significance of the fact that a parcel of land is roadless is that the parcel is potentially eligible for wilderness designation. Because Congress has, in the WSWA, preelud-ed judicial review of the suitability of inventoried lands for inclusion into the wilderness system, the appellees argue, the fact that a parcel of released land is roadless is, in itself, immaterial and need not be addressed in NEPA documents. We rejected similar arguments in National Audubon, which we decided while this case was pending in the district court. In that case, we considered a challenge to the Forest Service’s decision not to prepare an EIS in connection with a proposed logging project on inventoried, roadless land in the Oregon National Forest System. The Forest Service argued that § 7(b) of the Oregon Wilderness Act (OWA), Pub.L. No. 98-328, 98 Stat. 272 (1984), which contains language identical to that in § 5(b) of the WSWA, precluded judicial review of the agency’s decision not to consider the effect of the proposed sale on roadless parcels of inventoried land. We held that “[t]he prohibition on judicial review found in § 7(b) of the OWA applies not to roadless or roaded determinations, but to the Act’s mldemess or non-wilderness designations.” National Audubon, 4 F.3d at 837 (emphasis in original). The distinction we drew in National Audubon between wilderness designations and roadless determinations would be meaningless if, as the appellees suggest, an area’s roadless character has no environmental significance. As we stated in that case, “the decision to harvest timber on a previously undeveloped tract of land is ‘an irreversible and irretrievable decision’ which could have ‘serious environmental consequences.’” Id. at 842 (quoting the lower court opinion). That the land has been released by Congress for nonwilderness use does not excuse the agency from complying with its NEPA obligations when implementing a land-use program. There is, moreover, an additional significance, beyond the effect on “roadlessness,” to the agency’s decision to approve a logging sale on a 5,000 acre roadless area. Judicial review of the wilderness option is not foreclosed forever by the WSWA. Under that Act, the wilderness option for inventoried lands may be revisited in second-generation Forest Plans. WSWA § 5(b)(2), 98 Stat. at 303; National Audubon, 4 F.3d at 837. Accordingly, when the agency is considering the development of a 5,000 acre roadless area, selection of a no-action alternative, which the agency is required to consider, Idaho Conservation, 956 F.2d at 1515 (citing City of Tenakee Springs v. Block, 778 F.2d 1402, 1406 (9th Cir.1985)), would preserve the possibility that the area might some day be designated as wilderness. Clearly, under the WSWA, the agency is not required to preserve any released roadless area for wilderness consideration in second-generation Forest Plans. WSWA § 5(b)(3), 98 Stat. at 303. But the possibility of future wilderness classification triggers, at the very least, an obligation on the part of the agency to disclose the fact that development will affect a 5,000 acre roadless area. The Forest Service argues that even if the fact that an area is roadless is environmentally significant, the documents it prepared in this case — the Colville Forest Plan EIS and the Gatorson EA — are adequate under NEPA. “Roadless character,” the Forest Service asserts, is merely a synonym for specific environmental resources, including soil quality, water quality, vegetation, wildlife and fishery resources, recreational value, and scenic quality. All of these resources were addressed explicitly in the Gatorson EA, and the Forest Supervisor’s finding that the Ga-torson Sale will have no significant impact on these resources has not, itself, been challenged by Smith. In addition, the Gatorson EA specifically discussed the effect of the sale on “unroaded solitude.” Nevertheless, we must conclude that the agency’s NEPA documents are inadequate. The Gatorson EA addresses only the impact of the sale on resources in the Gatorson Planning Area, the area containing the proposed logging units. This area extends only as far east as the eastern-most proposed logging sites, and, significantly, does not include the remaining thousands of acres of roadless land in the Conn Merkel Area to the west of Thompson Ridge Road that will no longer be part of a 5,000 acre roadless expanse. The effect of the Gatorson Sale on this land was not addressed in the EA. The agency has never, in its NEPA documents, taken into account the fact that the sale will affect a 5,000 acre roadless area. In both the Colville Forest EIS and the Gator-son EA, the agency recognized that a portion of the Twin Sisters RARE II Area contains no roads, but dismissed the fact as irrelevant for wilderness consideration purposes because that portion would not stand alone as a 5,000 acre roadless area. Similarly, in both documents, the agency concluded that the Conn Merkel Area cannot stand alone as a 5,000 acre roadless area because of Thompson Ridge Road. But nowhere has the agency disclosed that the inventoried and unin-ventoried lands together comprise one 5,000 acre roadless area. As discussed above, the decision to harvest timber in a 5,000 acre roadless area is environmentally significant. We held in National Audubon that the agency must, under NEPA, consider the effect of a logging project on such a resource. We now therefore must hold that the agency’s obligation to take a “hard look” at the environmental consequences of the proposed sale and consider a no-action alternative require it, at the very least, to acknowledge the existence of the 5,000 acre roadless area. See Greenpeace Action, 14 F.3d at 1332; 40 C.F.R. §§ 1502.14, 1502.16 (1993). The parties have expended considerable effort arguing about whether the agency must prepare a site-specific EIS. In National Audubon, we remanded for consideration of whether the agency’s decision not to prepare an EIS in connection with a timber sale on inventoried land was arbitrary and capricious. National Audubon, 4 F.3d at 837-41. Implicit in that remand was our conclusion that an EIS may not be per se required under such circumstances. We leave to the agency the decision of how best to comply with NEPA and its implementing regulations, and hold only that the NEPA documents before us are insufficient. Conclusion For the foregoing reasons, the judgment of the district court is AFFIRMED in part and REVERSED in part, and this case is REMANDED to the district court. . NEPA requires the preparation of an EIS in connection with "major Federal actions significantly affecting the quality of the human environment. ...” 42 U.S.C. § 4332(2)(C). Prior to the completion of an EIS, an agency engages in an Environmental Assessment (EA) to determine whether an EIS is necessary. Greenpeace Action v. Franklin, 14 F.3d 1324, 1328 n. 4 (9th Cir.1992) (citing 40 C.F.R. § 1501.4(a)-(c)). If, on the basis of the EA, the agency determines that the proposed action will not significantly affect the environment, it need not prepare an EIS and may issue instead a Finding of No Significant Impact (FONSI). Id. (citing 40 C.F.R. § 1508.-13). . Smith contends that the agency's classification of Thompson Ridge Road as a road is arbitraiy because the agency has classified as roadless other areas containing similar trails. Even assuming that these other roads are, as a factual matter, identical to Thompson Ridge Road, we find, after reviewing the record, that the alleged dissimilar treatment is as likely the result of misidentification or of different circumstances in these other regions as it is the result of a deliberate disregard by the agency of its own regulations in classifying Thompson Ridge Road. In the absence of any other evidence of a nefarious motive in connection with the allegedly inconsistent treatment, we presume that the agency has acted with regularity. Louisiana Ass'n of Independent Producers & Royalty Owners v. FERC, 958 F.2d 1101, 1118-19 (D.C.Cir.1992); see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971); cf. Conner v. Burford, 848 F.2d 1441, 1448 (9th Cir.1988) (presuming that agency will comply with future NEPA obligations), cert. denied, 489 U.S. 1012, 109 S.Ct. 1121, 103 L.Ed.2d 184 (1989). . The report submitted by the agency to Chief Judge Quackenbush establishes that the 4,246 acres of uninventoried land to the west of Thompson Ridge Road is roadless. 9/16/93 Report of the Forest Supervisor (CR 58) at 7 ("The Thompson Ridge road ... bisects the Gatorson-Thompson Ridge into two parcels of unroaded area, each of which is less than 5,000 acres.... [T|he ... acreage west of the Thompson Ridge road equals 4,246 acres(emphasis added); see also id. at 10 (“When the area described by the court using the plaintiff's 'Conn Merkel' boundary is redrawn to exclude areas containing ... non-conforming uses, the remaining acreage of unroaded area west and south of the improved road along Thompson Ridge equals 4,246 acres.”) (emphasis added). Counsel for the agency conceded, at oral argument, that thousands of acres of the inventoried land bordering the Conn Merkel Area to the west is unroaded. . The Forest Service has provided us with a string of citations to portions of the EA allegedly addressing the effect of the sale on the entire Conn Merkel Area. FS Brf. at 16. All but one of these citations refer only to portions of the EA discussing the effect of the sale on water quality and hydrology in the general region. The other citation refers to a portion of the EA indicating only that the sale will lead to a “long-term reduction of average tree size and more created openings in the planning area and beyond....”

Northwest Motorcycle Ass'n v. United States Department of Agriculture

ORDER For the reasons stated in the memorandum opinion of the district court filed on August 7, 1992, in the Eastern District of Washington, we affirm the grant of summary judgment in favor of the appellees. We adopt the district court’s memorandum opinion as appended, finding it dispositive of all issues on appeal. AFFIRMED. MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, INTER ALIA JUSTIN L. QUACKENBUSH, District Judge: BEFORE THE COURT is Plaintiff’s Motion for Summary Judgment (Ct.Rec. 44), defendants’ Cross-Motion for Summary Judgment (Ct.Rec. 36), and Intervenor-De-fendants’ Washington Trails association, the Wilderness Coalition, the North Cascades Conservation Council, and the Mountaineers (the “Intervenors”) Cross-Motion for Summary Judgment (Ct.Rec. 39). A hearing on these motions was held on July 31, 1992. William Perry Pendley, of the Mountain State Legal Foundation, and Jerry Boyd appeared on behalf of the Plaintiff, while the Defendants were represented by Brian Ferrell, of the United States Department of Justice, Environmental & Natural Resources Division. The Intervenors were represented by Ronald G. Morrison. Having reviewed the record, heard from counsel, and fully considered these matters, the court enters this order to memorialize its oral rulings. I. FACTUAL AND PROCEDURAL BACKGROUND The Wenatchee National Forest, like all national forests, is governed by a Land and Resources Management Plan. In formulating the plan for the Wenatchee National Forest, nine alternative plans were considered by Defendant United States Forest Service. (A.R. 5 at page 12.) A draft Environmental Impact Statement (EIS) analyzing the alternatives was published in June 1986. (A.R. 93.) A final EIS was published in February 1990. (AR. 32.) In March 1990, the defendant United States Forest Service issued the Land and Resource Management Plan Record of Decision for the Wenatchee National Forest, which stated that Alternative C of the final EIS had been selected as the Wenatchee Forest Plan. (A.R. 30.) Included in Alternative C was the prohibition of off-road vehicle (ORV) use in the area surrounding the North Fork of the Entiat River and the adjacent Pyramid Mountain area in the Wenatchee National Forest (“North En-tiat”). The goal of the Land and Resource Management Plan for the Wenatchee National Forest (“the Plan”) is to “[p]rovide a well balanced array of recreation opportunities across the breadth of the recreation opportunity spectrum in accordance with resource capability, public demands and expectations for outdoor recreation.” (A.R. 31 at page PV-2.) The Plan also seeks to “[pjrovide a diverse system of safe, well-maintained trails for the enjoyment of all users.” Id. The Plan divides the Wenatchee National Forest into 24 management areas, each with different management goals, resource potential, and limitations. (A.R. 31 at page IV-105.) One such management area is classified RE-3, “Dispersed Recreation, Unroad-ed, Non-Motorized.” The management goal of RE-3 classified land is to “[pjrovide dispersed recreation in an unroaded, semi-primitive, non-motorized or primitive setting.” (A.R. 31 at page IV-171.) RE-3 designated lands include “unroaded areas in which trails are evident and maintained for non-motorized users. Landscape changes are generally not evident to those walking through the area. The area is essentially a natural or natural appearing environment. There is little evidence on-site of other users.” Id. In the Defendants’ Plan, a RE-3 prescription was given to the North Entiat area, thereby prohibiting ORV use in the area. On May 23, 1990, the Plaintiff, an ORV association in the State of Washington, submitted an administrative appeal challenging the Defendant United States Forest Service’s decision to close the North Entiat to motorized trailbike use. The Plaintiff claimed that this decision illegally resolved the alleged conflict between hikers and ORV users by arbitrarily closing the trails to the latter group. The Plaintiff also asserted that the Forest Service’s decision created an illegal buffer zone around a nearby Wilderness area. On February 19, 1991, the Defendant United States Forest Service denied the Plaintiff’s appeal and affirmed the decision to implement the Plan. On March 4,1991, the Plaintiff submitted a Request for Discretionary Review to Defendant Edward Madigan, the Secretary of Agriculture, in order to exhaust all administrative remedies. The Plaintiff alleges that no response was received, thus, it asserts that exhaustion of remedies has occurred. The Defendants do not challenge this contention. On October 14, 1991, the Plaintiff filed a complaint with this court seeking injunctive and declaratory relief based on alleged violations of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), and of the Washington State Wilderness Act of 1984, Pub.L. No. 98-339, § 9, 98 Stat. 299, 305 (1984). On March 25, 1992, the Intervenors, a group of nonprofit conservation organizations dedicated to the preservation and proper management of Washington’s public lands, including the national forests located therein, filed a Motion for Leave to Intervene (Ct. Rec. 15). The court granted the Intervenors’ motion in an order filed on April 22, 1992. (Ct.Rec. 33.) On June 8, 1992, the parties filed their respective cross-motions for summary judgment, which are now before the court. II. STANDARD OF REVIEW Under the Administrative Procedure Act, a 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 the law....” 5 U.S.C. § 706(2)(A). The Supreme Court has held that the ultimate standard of review under 5 U.S.C. § 706(2)(A) is a narrow one, noting that a court is not empowered by section 706(2)(A) to substitute its judgment for that of the agency. Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983); see also Sierra Pacific Indus. v. Lyng, 866 F.2d 1099, 1105 (9th Cir.1989). However, the Court also noted that a reviewing court must conduct a searching and careful inquiry into the facts. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971). In reviewing an agency’s decision under section 706(2)(A), a court “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Overton Park, 401 U.S. at 416, 91 S.Ct. at 416. After considering the relevant data, the court must “articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Motor Vehicle Manufacturers, 463 U.S. at 43, 103 S.Ct. at 2866 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 246, 9 L.Ed.2d 207 (1962)). In order for an agency decision to be upheld under the arbitrary and capricious standard, a court must find that evidence before the agency provided a rational and ample basis for its decision. Washington State Farm Bureau v. Marshall, 625 F.2d 296, 305 (9th Cir.1980). Further, “[w]here review involves an agency’s construction of the statute it administers, the court must first give effect to the unambiguously expressed intent of Congress.” Sierra Pacific, 866 F.2d at 1105. If the statute is silent or ambiguous concerning the issue in dispute, the court must then determine if the agency’s interpretation of the statute was based on a permissible construction of the statute. Id. III. STANDARD FOR SUMMARY JUDGMENT The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Zweig v. Hearst Corp., 521 F.2d 1129 (9th Cir.1975), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1976). The moving party is entitled to summary judgment as a matter of law where, viewing the evidence and the inferences arising therefrom in favor of the nonmovant, there are no genuine issues of material fact in dispute. Fed. R.Civ.P. 56(c); Semegen v. Weidner, 780 F.2d 727 (9th Cir.1986). When reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. See v. Durang, 711 F.2d 141 (9th Cir.1983). As mentioned previously, this case involves review of a final agency determination under the Administrative Procedure Act, 5 U.S.C. § 706; therefore, resolution of this matter does not require fact finding on behalf of this court. Rather, the court’s review is limited to the administrative record, to which the Plaintiff and the Defendants have stipulated to. (Ct.Rec. 43.) Because this case does not present any genuine issues of material fact, summary judgment is appropriate. IV. DISCUSSION The Plaintiffs suit centers on two contentions. First, it argues that the Defendants’ conclusion that “user conflict” required it to close the North Entiat area to ORVs was arbitrary and capricious. The Plaintiff also contends that the prohibition on ORV use in the North Entiat area was intended to create a “buffer zone” around the adjacent Glacier Peak Wilderness Area. A. Defendants’ Decision to Close the North Entiat Trails to ORV use was not Arbitrary and Capricious In the Plaintiffs motion for summary judgment, it is argued that the Defendants’ decision to close the North Entiat area to ORVs was not supported by a reasonable basis in fact. The Plaintiff also argues that the Defendants’ decision was not supported by a reasonable explanation of its rationale. In their cross-motions for summary judgment, the Defendants and the Intervenors dispute these contentions and argue that the Defendants’ decision was made after consideration of all of the relevant factors. They also assert that the Defendants did not commit a clear error in judgment in deciding to ban ORV use in the North Entiat area. 1. Defendants had a Rational and Ample Basis to Ban ORVs from the North Entiat Area As framed by the Plaintiff, the issue before the court is “whether the [administrative] record contains enough evidence of ‘user conflict’ on the North Entiat trails to enable a reasonable person to conclude that such conflict exists.” (Ct.Rec. 45 at page 9.) It is correct that an agency must have a rational and ample basis in fact for its decision. See Washington State Farm Bureau v. Marshall, 625 F.2d 296, 305 (9th Cir.1980). However, “user conflict” is not the only factor in the ORV restriction equation. Pursuant to Executive Order 11644, the Defendants are directed to: establish policies and provide for procedures that will ensure that the use of off-road vehicles on public lands will be controlled and directed so as to protect the resources of those lands, to promote the safety of all users of those lands, and to minimize conflicts among the various users of those lands. (A.R. 105) (Codified at 36 C.F.R. § 295.-2(a) — use of trails by ORVs that will cause conflicts with other forest visitors will be restricted until the conflict can be eliminated). Although there are several factors which the Defendants had to examine in their decision to exclude ORVs from the North Entiat area, the presence of “user conflict” was chief among their concerns. The definition of “user conflict” is not found in any regulation, pertinent law, or Forest Service policy. See (A.R. 5 at page 15). Therefore, the procedures for determining the extent of “user conflict” are developed individually for each forest. Id. The Plan in dispute here measured “user conflict” by the extent of user input regarding conflict and the collective experience of Forest Service personnel, including an Interdisciplinary Team established to analyze ORV use in the Wenatchee National Forest. (A.R. 32, Appendix K at page K-86, K-87.) The Plaintiff does not contest the validity of the Defendants’ methodology for determining “user conflict.” (Ct.Rec. 58 at page 3 n. 2.) Rather, it contends that the Defendants’ conclusion that “user conflict” existed was arbitrary and capricious. For the purpose of this action, it is reasonable to conclude that the Defendants used “conflict” in its normal everyday sense, that is, a “clash or divergence of opinions, interests, etc.; a mental or moral struggle occasioned by incompatible desires, aims, etc.” Webster’s New Collegiate Dictionary (2d Ed.) viewed in light of this definition, the Administrative Record supports the Defendants’ finding that “user conflict” existed in the North Entiat area, thus warranting the closure of the North Entiat area to ORV use. The following is the evidence in the administrative record which supports the Defendants’ findings: On April 30, 1987, during the development of the Plan, Representative Rod Chandler, of the United States Congress, forwarded a letter to Gary Heath, Acting Supervisor of the Wenatchee National Forest, stating that he had received over 500 letters from people who consider it a definite “conflict” for non-motorized trail users and ORVs to be using the same trails. (A.R. 85.) Representative Chandler also commented that “Wenatchee has become known as the worst National Forest in Washington state for conflict between ORV enthusiasts and non-motorized trail users.” Id. In addition, the Defendants met with special interest groups, including ORV users, horsemen, and hikers. Through these meetings, the Defendants discovered that the ORV users did not perceive a “conflict” between their use of the Wenatchee National Forest and non-motorized uses. (A.R. 43.) However, the Defendants found that non-motorized users disagreed. In fact, the non-motorized trail users felt that, by allowing the coexistence of motorized and non-motorized trail access in the North Entiat area, the Defendants were not fulfilling their obligation to manage the Wenatchee National Forest so as to avoid “user conflict.” Id. Further, the Defendants received approximately 3,000 letters during the public comment period of the planning process. As stated in the final EIS: “Not counting the timber industry ballot, [ORV use] received the most comments of any issue. The majority of the comments were against ORV use in general, but especially against any expansion of ORV use_” (A.R. 32, Appendix K at page K-8.) Many of these comments addressed issues concerning ORV use in the North Entiat area. For example: I have personally spent several days as a volunteer working on trail maintenance of the North Fork Entiat Trail over the past few years_ Unfortunately I have noticed a significant increase in the presence of trailbikes and their destruction in the past two years. The motorbikes tear up the trails and turn them to several inches of dust, and they plow through meadows leaving ruts and destroying wildflower displays. ... (A.R. 42 at 3429.) North Fork of the Entiat Valley.... The plan should consider a trail from Cottonwood to Myrtle Lake away from present trail to eliminate conflicts with horseman and hikers going to the wilderness. (A.R. 42 at 3483.) If more trails can be constructed to keep ORV users separate from hikers and horseman I thank a lot of conflict can be eliminated. (A.R. 42 at 26,749.) I have seen the damage done by the ORVs to trails in the [North] Entiat, and believe that backcountry ORV use should be restricted. (A.R. 42 at 26,635.) Hiking areas should be established in the Teanaway and North Fork of the Entiat. Off-road recreational vehicles should be kept in minimum conflict areas. I do not appreciate the roar of trailbikes when I am hiking in our national forests. (A.R. 42 at 3573.) These comments, and many more like them in the Administrative Record, illustrate the views of a significant number of national forest users who feel that the use of forest trails by ORVs significantly interferes with their use and enjoyment of those same trails. As a result of the outpouring of public sentiment concerning the alleged conflicts between hikers and ORV users, the Defendants established an Interdisciplinary Team to analyze ORV use in the Wenatchee National Forest. The primary responsibility of the Interdisciplinary Team was to scrutinize the trail system available to ORV users and hikers, study the overlapping interests, and formulate proposals to reduce conflict and address problems identified in the public comments. (A.R. 32 Attachment K at K-86.) “The results of this analysis and the concurrent evaluation of unroaded areas were merged to form the management direction and unroaded area allocation described in the alternatives in the [final] EIS.” Id. Based on the Interdisciplinary Team’s efforts, it was determined that “[t]he most significant opportunity to reduce conflict through the Forest Plan is in allocation of unroaded areas into either RE-2a and 2b, Unroaded Motorized, or RE-3, Unroaded Non-Motorized.... This allocation provides for separation of users on an area basis in some of the more controversial areas.” (A.R. 32 Appendix K at page K-86.) The Interdisciplinary Team specifically developed several alternatives for the recreational use of the North Entiat area. (A.R. 66.) The alternative adopted by the Defendants, and the one incorporated into the Plan, designated the North Entiat as a semi-primitive, non-motorized area. (A.R. 5 at 19.) One of the reasons the Team adopted this designation was to reduce the conflicts between hikers and motorbikers. (A.R. 66.) Further evidence of “user conflict” is contained in the Administrative Record at Item 94. This “White Paper on Status of Motorized Trails; Past-Present-Future,” provides the following with respect to conflicts in the North Entiat area: This trail system has 51.4 miles of trails.... The trail system is popular with the trailbike users. There are two trails that do have conflicts [sic] with other users. They are North Fork Entiat # 1400. This trail is the main entry into the Glacier Peak Wilderness_ The other trail is # 1433-1441 to Pyramid Mt., [it] has had conflicts in the past with the users going on a closed portion of trail 1441. (AR. 94.) Based on the foregoing, the Forest Service concluded that “user conflict” exists in the North Entiat area, and in order to fulfill its obligation to reduce such conflict, the Forest Service decided to close the North Entiat area to ORV use. The Plaintiff claims that this decision was arbitrary and capricious. First, the Plaintiff contends that insofar as the “user conflict” determination was based on the experience of Forest Service personnel, it was arbitrary and capricious because the Administrative Record contains no information on the specific “experience” of Forest Service personnel. In their briefs, neither the Defendants nor the Intervenors point to any place in the Administrative Record that indicates what events Forest Service personnel experienced that would justify a conclusion that “user conflict” existed in the North Entiat area. Further, when questioned about this during argument, the Defendants were unable to point to any place in the Administrative Record that specifically indicated what the personal experiences of the Forest Service personnel referred to in the Plan were. The Defendants do assert that the results of the Interdisciplinary Team’s study were, in part, based on the experiences of Forest Service personnel. However, the Defendants have not cited, nor has the court found, any direct statements from the Interdisciplinary Team that illustrate the personal experiences of Forest Service employees. If this court were only to consider the experiences of the Forest Service personnel, the court would have a difficult time upholding the Defendants’ decision to designate the North Entiat RE-3; however, this was not the only basis for the Defendants’ decision. In fact, it appears that the public comments received by the Defendants were the primary basis for the Defendants’ finding of “user conflict” in the North Entiat area, not the experience of Forest Service personnel. However, the Plaintiff also argues that the public comments do not justify the Defendants’ decision. The Plaintiff asserts that most of the comments expressed the author’s opposition to ORV use generally, and those that did discuss conflicts did so only in vague terms. Further, the Plaintiff urges the court to disregard the public comments because they were made by “interested” persons. The Plaintiff claims that none of the comments were independently verified by the Defendants, and even though the Defendants acknowledged that monitoring of conflicts was necessary, no monitoring ever took place. (AR. 78.) The Plaintiff strenuously contends that the comments made should be disregarded because the individuals are interested parties and their comments were unverifiable. The Plaintiff would have the Defendants attempt to somehow objectively quantify the extent of conflict. Citing Mobil Oil Corp. v. Federal Power Comm’n, 483 F.2d 1238, 1260 (D.C.Cir.1973), the Plaintiff argues that informal comments, like the ones offered in this case, cannot justify the Defendants’ decision because it is the process of testing and illumination that is a necessary part of reasoned decision making. Mobil Oil however, dealt with an agency setting rates for the transportation of liquid hydrocarbons. This endeavor is quite a bit different than the Defendants’ task in this case, for rates are quantifiable and can be objectively analyzed and tested, whereas “user conflict” has a significant subjective element to it. In this respect, Mobil Oil and the other eases cited by the Plaintiff in attempt to discredit the use of informal public comment to determine the existence of “user conflict” are distinguishable. Individual comment is a very persuasive indicator of “user conflict,” for determining the existence of conflicts between humans cannot be numerically calculated or counted; rather, the existence of conflict must be evaluated. The court can envision no better way to determine the existence of actual past or likely future conflict between two user groups than to hear from members of those groups. The Plaintiff also argues that the public comments did not directly discuss “user conflict” in the North Entiat; rather, the Plaintiff asserts that they just discussed a general dislike to ORVs. It is true that a majority of the public comments did not specifically state that ORV use “conflicts” with non-motorized uses and that many of the comments focused on the philosophical aversion many people hold toward ORV use; however, the intent of the comments is clear. In the minds of the individuals who commented on the issue, the noise, dust, trail damage, exhaust, and safety concerns caused by ORV use significantly reduces, or eliminates, the experience they seek while in the forest. (A.R. 43.) Though not phrased as such by the authors of the comments, the court finds that the comments indicated that a general “conflict” exists between the two user groups in the Wenatchee National Forest, including the North Entiat area. Further, the Plaintiffs contention that the public comments are unverifiable does not mandate a finding that the Defendants’ decision was arbitrary and capricious. The Plaintiff has offered, and the court has found, no statute or regulation that required the Defendants to independently verify public comments made in connection with the proposed plan for the Wenatchee National Forest. As the fact-finder in this case, the Defendants were in the best position to determine the credibility of the comments offered by the public establishing the existence of “user conflict” in the North Entiat. Sitting as an appellate court in this matter, the court will not reverse the Defendants’ implicit determination that the public comments accurately portrayed the thoughts and beliefs of the authors. Plaintiff also points to Forest Supervisor O’Neal’s October 3, 1988 letter where he stated that “monitoring efforts by the Entiat Ranger District personnel have been sketchy to date because of a lack of adequate personnel to do the monitoring.” (A.R. 43.) The Plaintiff argues that this illustrates the Defendants’ failure to verify the existence of “user conflict” in the North Entiat. However, the Plaintiff has pointed to no statute or regulation which mandates monitoring before implementation of a Land and Resource Management Plan. Regulations do require monitoring in order to review the management direction of the Plan and to ensure that the Plan is meeting its goal of protecting the productivity of the land and environmental values. See 36 C.F.R. § 219.12(k) and 36 C.F.R. § 219.10(f). This ongoing monitoring is required because the Plan is reviewed annually and can be amended. 16 U.S.C. § 1604(f)(4). However, the court finds that the Forest Service was under no obligation to perform physical monitoring of “user conflict” before the Plan was completed. Consequently, the court finds that even if the Defendants failed to adequately monitor the North Entiat area for actual “user conflicts,” this failure would not render their decision to close the North Entiat area to ORVs arbitrary and capricious. The Plaintiff further contends that the Defendants failed to establish that actual conflicts existed in the North Entiat area. The Plaintiff again points to the October 3, 1988 letter by Forest Supervisor Sonny J. O’Neal, written after the decision to close the North Entiat area was made, which stated that based on the monitoring conducted to date, “no on-the-ground conflicts between users have been documented in the area.” (A.R. 43.) The court might be persuaded by the Plaintiffs argument if the Defendants were instructed to minimize actual conflicts; however, this is not the case. 36 C.F.R. § 295.2(a) provides that if the Forest Service’s analysis underlying its land management plan indicates that the use of ORVs will cause considerable adverse effects, use of the type of ORV likely to cause such adverse effects will be restricted or prohibited. Taken in its entirety, section 295.2(a) commands the Forest Service to restrict ORV use when there is a future likelihood that considerable adverse effects would result from ORV use. Given the fact that the words “will” and “likely” were used in section 295.2(a), it cannot be said that the regulation requires evidence of past actual conflicts before use restrictions can be imposed. If it was intended that ORV restrictions be imposed only alter actual conflict occurred, appropriate language would have been used to so specify. In other words, it the regulation was only intended to trigger ORV use restrictions when conflicts had actually occurred, the wording of section 295.-2(a) would likely read “[i]f the analysis indicates that the use of one or more vehicle types off roads has caused....” instead of “[i]f the analysis indicates that the use of one or more vehicle types off roads will cause_” Further, 36 C.F.R. § 295.2(b), which discusses the Forest Service’s charge to minimize “user conflict” when developing ORV use plans, does not require that actual conflicts exist before restrictions on ORV use can be imposed. In fact, the language of section 295.2(b)(3) suggests just the contrary: “Areas and trails shall be located to minimize conflicts between off-road vehicle use and other existing or proposed recreational uses of the same or neighboring public lands.... ” (Emphasis added.) By directing the Forest Service to minimize conflicts between ORVs and proposed recreational uses, the regulation must be read as contemplating likely future conflicts because there can be no actual conflict with a proposed activity. Under the codification of the applicable Executive Order, the court concludes that the Defendants were charged to minimize likely future conflicts between forest users. The Executive Order does not require a factual recitation of actual confrontations. If the Plaintiffs position was accepted, the Forest Service would only have to restrict ORV use if actual physical altercations between two user groups occurred. In light of the Executive Order and 36 C.F.R. § 295.2, the court rejects the argument that the Forest Service’s role in minimizing user conflicts is strictly reactive. The Executive Order, and its codification, must be read as inherently granting the Forest Service authority to prevent physical confrontations and to execute its planning and land management authority in a preemptive manner. The court determines that by anticipating confrontations and enacting appropriate regulations to prevent them, the Defendants honor the intent and spirit of the Executive Order and 36 C.F.R. § 295.2. Finally, the Plaintiff, during argument, stated that the Forest Supervisor sent a letter to Representative Chandler claiming that no “user conflict” existed in the North Entiat. However, a review of two letters sent by the Forest Service indicates that Representative Chandler was told that “user conflict” existed. In a letter dated December 1, 1986, Forest Supervisor Donald H. Smith informed Representative Chandler that “Entiat and Nacnes Ranger Districts are the only ones that had documented conflicts [between motorized and non-motorized users]. These consist of 12 letters that have been received indicating various degrees of conflict.” (A.R. 91.) Moreover, in a June 9, 1987 letter, Acting Forest Service Supervisor Gerald G. Heath told Representative Chandler that “[s]ince the Wenatchee Forest has more trail use than any other National Forest in the state, and more trailbike use than all the other forests combined, it seems logical that there is more potential for conflict here than elsewhere. Yet the reports of actual conflicts received by our Ranger Districts are very few.” (A.R. 82.) These letters directly contradict the Plaintiffs assertion that Representative Chandler was told that no “user conflict” existed in the Wenat-chee National Forest, including the North Entiat. In sum, the court finds that the issue of ORV use in the North Entiat area poses a philosophical struggle occasioned by incompatible desires and aims between ORV users and non-motorized trail users. The Defendants rationally found that ORV users and other non-motorized trail users were, or were likely to be, in “conflict” with one another in the North Entiat area. Moreover, the court finds sufficient evidence in the record that the Defendants’ designation of the North En-tiat area as semi-prhnitive, non-motorized, was for the protection of the resources on the land, as well as to ensure the safety of all land users. The court finds that the evidence considered by the Defendants, including reliance on user comments, Forest Service personnel professional judgment, and the findings of the Interdisciplinary Team, provided them with a rational and ample basis for its decision to close the North Enti-at area to ORV use. The court determines that the Defendants considered all relevant factors, including the actual and likely future “conflict” between ORV users and hikers, in rendering its decision, and that decision did not amount to a clear error of judgment. Consequently, the court finds that the decision to close the North Entiat area to ORV use was not arbitrary and capricious, in violation of the Administrative Procedures Act. 2. Defendants’ Decision to Close the North Entiat Area to ORVs is Supported by a Reasonable Explanation As stated previously, an agency must articulate a satisfactory explanation for its action. There must be a rational connection between the facts found and the choices made. Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983). The agency’s explanation must be sufficient to permit effective judicial review, see S.E.C. v. Chenery Corp., 332 U.S. 194, 196-97, 67 S.Ct. 1575, 1577-78, 91 L.Ed. 1995 (1947), and the reviewing court should not attempt to make up for deficiencies in the agency’s decision. Motor Vehicle Manufacturers, 463 U.S. at 43, 103 S.Ct. at 2866-67. A court “may not supply a reasoned basis for the agency’s action that the agency itself has not given.” Id. However, a court can uphold an agency decision “of less than ideal clarity if the agency’s path may reasonably be discerned.” Id. In the case at bar, the Plaintiff contends that the Defendants did not set forth a satisfactory explanation for their conclusion that “user conflict” required the closure of the North Entiat area to ORV use. The essence of the Plaintiffs argument is that the Defendants failed to articulate a connection between the facts found and their conclusion that ORV use conflicted with non-motorized uses. Although not a model of clarity, the court finds that it can discern the Defendants’ decision-making path from the Administrative Record, and concludes that there exists in the record a satisfactory explanation for the Defendants’ decision. The rationale for closing the North Entiat area to ORV use is contained in the Plan’s “Record of Decision.” (A.R. 30.) The Record of Decision states that conflicts between recreational users, including hikers and ORV users, are becoming more common. The Record of Decision goes on to state that: [bjetween the draft and final, the Forest initiated an intensive analysis of trail management, including semi-primitive motorized and non-motorized recreation opportunities, on the entire Forest, District by District, based on public comments to the [draft EIS] and personal experience of professionals. The main purpose of the analysis was to find the proper balance between motorized and non-motorized trails for the Forest. Id. at 21 (emphasis added). The Record of Decision also provides that the decision to prohibit ORV use in the North Entiat area, along with other aspects of the Plan, will “provide a proper balance of trail opportunities between motorized and non-motorized users and, hence, reduce the potential for conflict.” Id. (emphasis added). Further, the final EIS states that the Defendants had received extensive comments expressing high levels of concern about conflicts between ORV users and hikers. According to Sonny J. O’Neal, Wenatchee National Forest Supervisor: “Most complaints were from hikers, and some mentioned noise, exhaust, dust, interruptions, and safety as the main source of conflict.” (A.R. 43.) To address the concerns raised by these comments, an Interdisciplinary Team was formed. The Interdisciplinary Team’s analysis was merged with the Defendants’ evaluation of the unroaded areas and the public’s comments to arrive at an allocation of trail miles available for different uses, including hiking and motorized use. (A.R. 32 Appendix K at page K-86.) According to the final EIS, “[t]hese allocations were made in an effort to provide opportunities for motorized use and hiking in a variety of settings. They also seek to match the designated use to the other resource values of the immediate areas and reduce user conflicts.” Id. at K-87. As mentioned previously, the Interdisciplinary Team developed several alternative plans to address the ORV/hiker conflict. The alternative that was eventually incorporated into the final Plan called for closure of the North Entiat area to ORV use. In its analysis of each alternative, the Interdisciplinary Team listed the “pros” and “cons” of each alternative. What follows are the “pros” and “cons” of the preferred alternative: Pro — Reduce overall reconstruction costs.... Provide contiguous area outside Wilderness for nonmotorized trail experience. Reduces conflicts between hikers and motorbikers. Make law enforcement easier. Does not effect the agreement with I.A.C. Adds protection of Wilderness from motorized use violations. Con— Alienates a User Group. Restricts motorized use to fewer trail miles — Causing greater impacts on the remaining trails. Eliminates a reasonable access by motor bikes to a destination spot (Fern Lake.) Gives hiker/horse group exclusive use of North Fork area and they can still share Mad River area. (A.R. 66) (emphasis added). The Plaintiff’s contention that the Defendants failed to articulate any connection between “facts found” and their conclusion that ORV use “conflicted” with non-motorized uses in the North Entiat is without merit. In the excerpts from the Administrative Record cited above, the Defendants clearly state that based on public comments, professional experience, and the analysis of the Interdisciplinary Team, non-motorized trail users’ enjoyment of the North Entiat area of the Wenatchee National Forest was hindered by the presence of ORVs. The Defendants concluded that this hinderanee was a sufficient “conflict” to justify the closing of the North Entiat area to ORV use. In other words, the Defendants “found” that the noise, dust, trail damage, exhaust, and safety concerns caused by ORV use in the North Entiat area “conflicted” with non-motorized trail use by reducing the enjoyment experienced by non-motorized trail users in the North Entiat area. (A.R. 43.) This articulation is sufficient for this court to execute effective judicial review, and in so doing, the court finds that there was a rational relationship between the facts found by the Defendants and the closing of the North Entiat area to ORV users. Further, the court finds that the Defendants’ desire to provide a proper balance of trail opportunities between motorized and non-motorized users and to reduce “user conflict” was a reasoned basis for the Defendants’ decision to close the North Entiat area to ORV use. During argument, the Plaintiff asserted that because the Defendants had historically allowed ORV use in the North Entiat area, they had to support ORV use restriction in the North Entiat with a greater justification than would have been necessary if no ORV use had ever been permitted in the area. In support of its position, the Plaintiff cites Motor Vehicle Manufacturers, 463 U.S. at 42, 103 S.Ct. at 2866, where the Supreme Court stated that “an agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.” The Plaintiff argues that this “reasoned analysis” must explain why the agency chose to deviate from prior policy. The court disagrees that the Defendants in this case changed their policy. Rather, they modified a “plan” to further an existing policy, which is to minimize user conflict. Further, the cases cited by Plaintiff prohibit policy changes without a principled reason to do so. Even if the closure of the North Entiat was viewed as a policy change, it was, as discussed supra, based on a rational and principled reason: to minimize “user conflicts” in the North Entiat. B. The Plan Did Not Create a “Buffer Zone" Around a Wilderness Area in Violation of the Washington State Wilderness Act of 1984 The Plaintiffs position is that the Washington State Wilderness Act of 1984 explicitly bars the creation of buffer zones around Wilderness areas. The Plaintiff contends that the Defendants eliminated ORV use in the North Entiat area, in part, to buffer the adjacent Glacier Wilderness Area (“Glacier”) from the possibility of negative impacts caused by ORV use. The Plaintiff asserts that the Plan creates a defacto buffer zone around Glacier. Section 9 of the Washington State Wilderness Act of 1984 [the Wilderness Act] provides: Congress does not intend that designation of wilderness areas in the State of Washington lead to the creation of protective perimeters or buffer zones around each wilderness area. The fact that non-wilderness activities or uses can be seen or heard from areas within the wilderness shall not, of itself, preclude such activities or uses up to the boundary of the wilderness area. P.L. 98-339, § 9, 98 Stat. 299, 305 (1984). An unambiguous statute must be applied according to its plain meaning. Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917). The Plaintiff contends that the Wilderness Act is unambiguous and strenuously argues that the “plain language” of the Wilderness Act bars all buffer zones and protective perimeters around Wilderness areas, without exception. The Defendants contend that section 9 of the Wilderness Act does not require buffer zones around Wilderness areas. This reading of the Wilderness Act is a reasonable one it the second sentence of section 9 is ignored. However, when section 9 is considered in total, it is clear that Congress intended that protected zones around Wilderness areas cannot be created if the only reason for their existence is to protect the Wilderness area from the effects of uses on adjoining nonwild-erness lands. In this respect, the Plaintiff is correct that the Wilderness Act prohibits buffer zones around Wilderness areas. This conclusion, however, does not necessitate reversing the Defendants’ decision in this case. To the extent an activity is prohibited on land adjacent to a Wilderness area solely because of its potential effect on the Wilderness area, the prohibition would likely violate the Wilderness Act’s prohibition of buffer zones. However, if an activity is prohibited, in part, for reasons other than the possible effect that activity will have on an adjoining Wilderness area, it is not an impermissible buffer zone under the Wilderness Act. The Wilderness Act clearly prohibits use restrictions on nonwilderness areas based solely on the potential impact that use might have on the Wilderness. Congress’ intent on this point is manifested through its express language in section 9 of the Wilderness Act: “The fact that nonwilderness activities or uses can be seen or heard from areas within the wilderness shall not, of itself, preclude such activities or uses up to the boundary of the wilderness area.” (Emphasis added.) When Congress used the words “of itself,” it implicitly stated that the effects on a Wilderness area can be considered when allocating uses of adjoining nonwilderness area, so long as it is not the only reason. Therefore, contrary to the Plaintiffs position, the Wilderness Act does not prevent the Forest Service from considering the Wilderness classification of adjoining land as a factor in developing the Land and Resource Management Plan for the non-wilderness area. The Plaintiff, in its Reply Brief, argues that the Wilderness Act places just one limit on the Defendants’ authority to impose use restrictions on the North Entiat: the Defendants may not eliminate a nonwilderness multiple use, like ORVs, in order to insulate a Wilderness area from that use. The Plaintiff is correct insofar as it states that the Defendants could not have properly prohibited ORV use in the North Entiat area solely because of the potential effect such use would have on Glacier. However, the Plaintiff is incorrect to the extent it argues that the Defendants could not have permissibly considered the impact of ORV use in the North Entiat on Glacier as a factor in their Land and Resource Management Plan. As discussed above, the primary reason ORVs were precluded from the North Entiat area was to reduce “user conflicts.” The fact that this determination was additionally based on other factors, including the proximity of the North Entiat area to Glacier, does not invalidate it. The Plaintiff argues that if this court allows the Defendants’ Plan to stand, “it would allow the Forest Service to buffer designated wilderness by barring nonwilderness multiple uses from nearby zones without fear of judicial reversal.” (Ct.Rec. 45 at page 17.) It is true that the Defendants in this case have barred ORV use in land adjoining a Wilderness area. However, contrary to the Plaintiffs assertion, this was not done without judicial review. The court has already found that the Defendants’ decision was not arbitrary and capricious based, in part, on its determination that “user conflicts” existed in the North Entiat area. This finding ends the buffer zone inquiry under the Wilderness Act, for it establishes that a protective zone was not created solely to protect a Wilderness area from the effects of uses on adjoining nonwilderness land. V. CONCLUSION The court determines that the Defendants’ decision to prohibit ORV use in the North Entiat area based primarily on the existence of actual and/or likely future “user conflict” in the area was not arbitrary or capricious. Further, the court finds that the designation of the North Entiat area as RE-3, Dispersed Recreation, Unroaded, Non-Motorized, was not created solely as a buffer zone around Glacier Peaks Wilderness in violation of the Washington State Wilderness Act of 1984. Consequently, because there exist no genuine issues of material fact and the Defendants and Intervenors are entitled to judgment as a matter of law, the Defendants’ and Interve-nors’ cross-motions, for summary judgment should be granted. IT IS HEREBY ORDERED: 1. The Plaintiff’s Motion for Summary Judgment (Ct.Rec. 44) IS DENIED. 2. The Defendants’ Cross-Motion for Summary Judgment (Ct.Rec. 36), and the Intervenor’s Cross-Motion for Summary Judgment (Ct.Rec. 39) ARE GRANTED and the Complaint shall be DISMISSED WITH PREJUDICE. IT IS SO ORDERED. The Clerk is hereby directed to enter this Order, furnish copies to counsel, and close the file. DATED this 7th day of August 1992. . The Defendants’ obligation referred to by the non-motorized trail users is contained in 36 C.F.R. § 295.2(a). 1: "If the analysis indicates that the use of one or more vehicle types off roads will cause considerable adverse effects on the resources of other forest visitors, use of the affected areas and trails by the vehicle type or types likely to cause such adverse effects will be restricted or prohibited....” . The Plaintiff claims that its organization would have offered more letters in support of its position, but the Defendants had earlier represented that the quality of ideas was more important than the quantity. Apparently, therefore, the Plaintiff's members did not send as many comments in on this issue as they could have. The fact that the Plaintiff's organization did not publish as many letters in support of its position as it could possibly have does not alter the court's finding in this case. The court here is reviewing the evidence only to determine whether such evidence existed that justified the Defendants’ decision. Because the court finds that the Defendants could have rationally based their decision on the comments made, the court concludes that additional comments made to the contrary by the Plaintiff's members would have only gone to the weight of the evidence and, therefore, would not have altered this court’s judgment. . In its Response brief, the Plaintiff alleges that the decision to close the North Entiat area to ORV use was based on political pressure. The Plaintiff supports its contention by referring to Representative Chandler's letter to the Defendants regarding "user conflict." In that letter, Representative Chandler stated that he received over 500 letters from individuals who consider it a conflict for non-motorized trail users and ORV users to be using the same trails. The Plaintiff claims that this "pressure" resulted in an improper motivation to close the North Entiat area to ORV use. This court cannot conclude that the Defendants' decision to prohibit ORV use in the North Entiat area was arbitrary and capricious because a Congressman conveyed his constituents’ views on “user conflict” to the Forest Service. What the Plaintiff refers to as "political pressure" is how the individual voice is heard in our form of government. By forwarding letters of concern to the Forest Service, Representative Chandler was not applying "political pressure,” he was fulfilling his sworn obligation to his constituents.

Voyageurs Region National Park Ass'n v. Lujan

JOHN R. GIBSON, Circuit Judge. Voyageurs Region National Park Association and a group of six other organizations appeal from the district court’s refusal to enjoin snowmobile use on the Ka-betogama Peninsula within Voyageurs National Park in Minnesota, pending study of the area for wilderness designation pursuant to the Wilderness Act, 16 U.S.C. §§ 1131-1136 (1988). Voyageurs argues that the Park Service’s decision to permit snowmobiling within a wilderness study area violates the Wilderness Act and is arbitrary and capricious. We affirm the district court. Congress authorized the establishment of Voyageurs National Park on January 8, 1971. 16 U.S.C. § 160 (1988). The Voyageurs National Park Act required the Secretary of Interior to study and recommend park lands for designation and protection as wilderness areas. 16 U.S.C. § 160f(b). The Wilderness Act also required the Secretary of Interior to review all park road-less areas of 5,000 acres or more for potential wilderness designation. 16 U.S.C. § 1132(c). Despite the congressional mandate, the Secretary never submitted a wilderness recommendation to the President for the Voyageurs National Park. Once Congress has designated land as a wilderness area, its use is restricted. Permanent roads, and, except in certain situations, “temporary road[s], ... motor vehicles, motorized equipment ... [and any] other form of mechanical transport” are prohibited in wilderness areas. 16 U.S.C. § 1133(c). Federal regulations governing national parks, with limited exceptions, specifically prohibit snowmobile use. The question here is whether an area under study for wilderness designation is subject to the use restrictions outlined above. Guidance on this question can be gleaned from 43 C.F.R. § 19.6 (1991), which states that the “administration and use” of potential wilderness areas: shall be developed with a view to protecting such areas and preserving their wilderness character ... in such manner as will leave them unimpaired for future use and enjoyment as wilderness, with inconsistent uses held to a minimum. Park Service Management Policies also state that potential wilderness areas will be managed as wilderness, and the Service “will seek to eliminate the temporary conditions that preclude wilderness designation.” Management Policies: Part One: Management of the National Park Systems 6:3 (Dec. 1988). The policies also state that: The Park Service will take no action that would diminish the wilderness suitability of an area recommended for wilderness study or for wilderness designation until the legislative process has been completed. Until that process has been completed, management decisions pertaining to recommended wilderness and wilderness study areas will be made in expectation of eventual wilderness designation. Id. In November 1988, the Park Service issued a Draft Trail Plan and Environmental Assessment for the park. This plan considered establishing a 29.4 mile system of parallel snowmobile trails across the Kabe-togama Peninsula. In April 1989, the Park Service announced the adoption of the proposed snowmobile trail plan, and Voyageurs filed this action seeking an order requiring the Park Service to complete a wilderness study, and enjoining the Park Service from allowing snowmobiling and establishing temporary and permanent snowmobile trails on the Kabetogama Peninsula until the Park Service completed the statutorily required process of wilderness designation. After Voyageurs brought this action, the Director of the National Park Service issued a memorandum to the Service’s Midwest Regional Director entitled “Waiver of Policy for Voyageurs National Park Trail Plan.” The memorandum recognized that implementation of the trail plan would require a waiver of both the snowmobile and wilderness provisions of the National Park Service’s Management Policies. The Service concluded that waiver of these policies was appropriate. The Secretary relied on the Voyageurs Park enabling legislation which authorized the Secretary to permit snowmobiling in the park. Specifically, 16 U.S.C. § 160h provides: “The Secretary may, when planning for development of the park, include appropriate provisions for (1) winter sports, including the use of snowmobiles....” The Secretary concluded that the Wilderness Act did not require that wilderness study areas be treated as wilderness; rather the Act required only that “[fjederal agencies not take any actions in such areas that would preclude their future designation as wilderness.” Because the trail surface would not be artificially hardened and would require only minimal clearing and signing, the Secretary concluded that the proposed trail “would not constitute such a diminishment of the area as to preclude future designation as wilderness if snowmobile use were discontinued....” The Secretary also observed that snowmobiling had occurred before the park became a national park, that “[n]o evidence of harm to wildlife ha[d] been put forward,” and that the use of snowmobiles contained in a limited corridor is more desirable than the “unregulated and widely dispersed use that is currently occurring.” On January 30, 1991, the Park Service issued a regulation, 36 C.F.R. § 7.33(b) 1991, authorizing snowmobiling on certain lakes and trails (including the Kabetogama Peninsula) within the park. Both parties filed motions for summary judgment. The district court first concluded that the seven plaintiff organizations had standing, Voyageurs Regional National Park Association v. Lujan, No. 4-90-434, slip op. at 10-15 (D.Minn. Apr. 15, 1991), that their claims were ripe for judicial review, id. at 15-16, and were reviewable agency actions. Id. at 16-22. The district court then ordered the Secretary of the Interior to make his wilderness recommendation to the President, id. at 28-29, but refused to enjoin snowmobile use in any part of the park. Id. at 29-34. The court concluded that the January 30, 1991, Park Service regulation did not violate the Wilderness Act, and that the Park Service decision to allow snowmobiling on the Ka-betogama Peninsula was not arbitrary or capricious. Id. at 32. In making these rulings, the district court relied in large part on the Voyageurs National Park enabling legislation which, as we have observed above, specifically provides for snowmobiling in the park. Id. This appeal followed. This court will set aside an agency decision only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (1988); Gettler v. Lyng, 857 F.2d 1195, 1198 (8th Cir. 1988). An agency regulation “will be upheld if it is ‘reasonably related to the purposes of the enabling legislation.’ ” Arkansas v. Block, 825 F.2d 1254, 1256 (8th Cir.1987) (quoting Mourning v. Family Publications Serv., Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 1660, 36 L.Ed.2d 318 (1973). “We must defer to any reasonable interpretation given the statute by the agency charged with its administration.” Arkansas Poultry Fed’n v. United States Envt’l. Protection Agency, 852 F.2d 324, 325 (8th Cir.1988). I. Voyageurs argues that the district court erred in refusing to enjoin snowmobile use on the Kabetogama Peninsula. It contends that the Wilderness Act, federal regulations governing national parks, as well as the National Park Service’s management policies, require, that wilderness study areas be managed as wilderness pending a review and ultimate decision on designation by Congress, and therefore, to permit snowmobiles within this area is contrary to law. In addition, Voyageurs relies on a number of statements made by members of Congress to support its position that Congress intended wilderness study areas to be managed as wilderness pending a final decision on their admission into the National Wilderness Preservation System. Voyageurs also relies on Parker v. United States, 448 F.2d 793 (10th Cir.1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1252, 31 L.Ed.2d 455 (1972), as precedent for eliminating any agency discretion that would destroy the wilderness value of a wilderness study area. In Parker, the Tenth Circuit upheld an injunction prohibiting the Forest Service from performing a contract to harvest timber in a wilderness study area. Id. at 793, 798. The court reasoned that to do otherwise “would render meaningless the clear intent of Congress ... that both the President and the Congress shall have a meaningful opportunity to add ... areas predominantly of wilderness value” to the National Wilderness Preservation System. Id. at 797. The circumstances here differ from those in Parker. First, Parker considered no statutory counterpart to that contained in 16 U.S.C. § 160h. The Voyageurs Park enabling legislation demonstrates that Congress contemplated and authorized the use of snowmobiles in the park. Section 160h also clouds any significance we might place on the various statements made by members of Congress. See In re Erickson Partnership, 856 F.2d 1068, 1070 (8th Cir. 1988) (when statutory language is clear, it is unnecessary to turn to legislative history). Second, here, the Park Service concluded that snowmobiling would not permanently change the- area, and thus, would not preclude the area from future designation as wilderness. No such finding was made in Parker. We are persuaded that the circumstances here are more akin to those in Minnesota Public Interest Research Group v. Butz, 541 F.2d 1292 (8th Cir.1976) (en banc), cert. denied, 430 U.S. 922, 97 S.Ct. 1340, 51 L.Ed.2d 601 (1977). In that case, we construed former subsection (d)(5) of section 4 of the Wilderness Act. This subsection directed the Secretary of Agriculture to manage the Boundary Waters Canoe Area “in accordance with the general purpose of maintaining ... the primitive character of the area” but “without unnecessary restrictions on other uses, including that of timber.” Id. at 1297. We concluded that this provision allowed for timber logging in a primitive area observing that “some commercial logging ... was contemplated by Congress.” Id. Likewise, here, it is apparent that Congress contemplated snowmobile use within the park. See 16 U.S.C. § 160h. Voyageurs bases its argument on the more general provisions of the Wilderness Act, adopted in 1964, but the Voyageurs Park enabling legislation, adopted in 1971, specifically refers to the use of snowmobiles in the park. 16 U.S.C. § 160h. Congress was certainly aware of the Wilderness Act when it enacted the Voyageurs National Park Act, and the general language of the Wilderness Act must give way to the more specific provisions of the park’s enabling legislation. See Markair, Inc. v. Civil Aeronautics Bd., 744 F.2d 1383, 1385 (9th Cir.1984). The Park Service balanced section 160h with other provisions of the Wilderness Act, and we cannot conclude its course of action was unlawful. II. Voyageurs also contends that the Park Service’s waiver of preexisting policies prohibiting snowmobiling in potential wilderness areas violated its own policies, and therefore, is not in accordance with law and is arbitrary and capricious. Voyageurs argues that the Park Service’s action violates its own management policies in two ways. First, Voyageurs says that because snowmobiling on the Peninsula would be illegal if the Peninsula were designated as a wilderness area, the Park Service’s current policy is not a “management decision[ ] ... in expectation of eventual wilderness designation.” Second, it contends that snowmobile use “diminish[es] the wilderness suitability of an area recommended for wilderness study ... [before] the legislative process has been completed.” Voyageurs specifically points out that the use of snowmobiles will adversely impact bald eagle reproduction, wolf populations and vegetation. An agency must indeed follow its own regulations while they remain in force. See Service v. Dulles, 354 U.S. 363, 379, 77 S.Ct. 1152, 1160, 1 L.Ed.2d 1403 (1957). An agency may amend its regulations, however, if it provides explanations when its rulemaking reflects significant policy changes. Sierra Club v. Clark, 755 F.2d 608, 619 (8th Cir.1985). We are satisfied the agency’s action is not arbitrary and capricious. While there are troublesome aspects to the Park Service’s decision, we cannot say that it rises to the level of being arbitrary and capricious. The Service provided adequate explanation for its departure from its management policies by finding that because the trails will not be artificially hardened and will be subject to only minimal clearing and signing, the area would not be diminished for future wilderness designation. We also observe that the final regulations provide for closure of given areas to snowmobile use “taking into consideration ... wildlife management.” 36 C.F.R. § 7.33(b)(3). The use of park lands involves many conflicting interests and, at heart, requires policy decisions which, in the last analysis, are made by Congress. In light of Congress’s express authorization of snowmobile use within the park, we cannot conclude the agency’s action is arbitrary or capricious. We affirm the judgment of the district court. . The National Parks and Conservation Association, The Wilderness Society, Sierra Club, The Humane Society of the United States, The Friends of The Boundary Waters Wilderness, and Friends of Animals and Their Environment. . The Honorable Harry H. MacLaughlin, United States District Judge for the District of Minnesota. . 16 U.S.C. § 160f(b) provides: Within four years from the date of establishment, the Secretary of the Interior shall review the area within the Voyageurs National Park and shall report to the President, in accordance with subsections (c) and (d) of section 1132 of this title [the Wilderness Act], his recommendation as to the suitability or nonsuitability of any area within the lake-shore for preservation as wilderness_ . 16 U.S.C. § 1133(c) provides: Except as specifically provided for in this chapter, ... there shall be no commercial enterprise and no permanent road within any wilderness area ... [and] there shall be no temporary road, no use of motor vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of mechanical transport, and no structure or installation within any such area. . 36 C.F.R. § 2.18(c) (1991) provides: The use of snowmobiles is prohibited, except on designated routes and water surfaces that are used by motor vehicles or motorboats during other seasons. Routes and water surfaces designated for snowmobile use shall be promulgated as special regulations. Snowmobiles are prohibited except where designated and only when their use is consistent with the park’s natural, cultural, scenic and aesthetic values, safety considerations, park management objectives, and will not disturb wildlife or damage park resources. . No objection is raised concerning the use of snowmobiles on frozen lake surfaces. . The Secretary did not appeal these first four rulings. Nevertheless, the Minnesota United Snowmobilers Association and several cities and counties filed an amici curiae brief arguing that the appellants lack standing and that appellants' claims are nonjusticiable political questions. We reject these arguments. . The wilderness designation process is still in process. On May 29, 1992, the Environmental Protection Agency filed its final Environmental Impact Statement for the wilderness recommendation proposed by the Park Service. See 57 Fed.Reg. 22747 (1992).

Minnesota Public Interest Research Group v. Butz

ROSS, Circuit Judge. This environmental litigation is before this court en banc for the second time. In Minnesota Public Interest Research Group (MPIRG) v. Butz, 498 F.2d 1314 (8th Cir. 1974) (en banc), we affirmed an order of the district court which temporarily enjoined commercial timber cutting in the Portal Zone of the Boundary Waters Canoe Area (BWCA) pending completion by the Forest Service of its new BWCA Land Use Management Plan and accompanying environmental impact statement (EIS). After the BWCA EIS and Management Plan were published by the Forest Service, plaintiffs MPIRG and Sierra Club filed the present action against the named defendants claiming: 1) the Wilderness Act of 1964, 16 U.S.C. §§ 1131 et seq., prohibits commercial logging in the virgin forest areas of the BWCA; and 2) the EIS and Management Plan are procedurally and substantively inadequate under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq. In an exhaustive opinion, the district court held: 1) the Wilderness Act prohibits logging in areas contiguous to the remaining large blocks of virgin forest in the BWCA; and 2) the EIS is inadequate under NEPA. MPIRG v. Butz, 401 F.Supp. 1276 (D.Minn.1975). In view of this holding, the district court permanently enjoined existing and future timber sales in the areas contiguous to the remaining virgin forest areas of the BWCA. Id. at 1334. We hold that the Wilderness Act does not prohibit commercial logging in the virgin areas of the BWCA’s Portal Zone and that the EIS, with exceptions discussed infra, is procedurally and substantively adequate under NEPA. Accordingly, we reverse. No useful purpose would be served by reciting the complicated facts of this case. That objective has been achieved in three other reported decisions. We outline only the essential facts here. In our prior opinion, we described the BWCA as follows: The BWCA, located in northern Minnesota, is a unique natural resource with some 1,060,000 [sic] acres of lakes, streams, and timber, which along with the adjoining Canadian Quetico-Superior forest forms the only canoe wilderness area in the world. The area contains more than 1,000 lakes larger than 10 acres, either connected by streams or convenient portages that allow for easy canoe travel through the wilderness area. The BWCA is administered by the United States Forest Service as a Wilderness Area and as a part of the Superior National Forest. The Draft Management Plan of the Forest Service for the BWCA refers to the area as “unique, pristine, endangered, rugged, primitive, beautiful and fragile.” Highly prized by many, including plaintiff MPIRG, the Wilderness Area affords recreational, scientific, and educational opportunities. It is also highly regarded by others, like the defendant paper and logging companies, who value the thousands of acres of marketable timber it contains. MPIRG v. Butz, supra, 498 F.2d at 1316— 1317. The BWCA is divided into two zones pursuant to a regulation promulgated by the Secretary of Agriculture. The Interior Zone is comprised of approximately 618,000 acres in which commercial timber cutting is not allowed. The Portal Zone is comprised of approximately 412,000 acres in which commercial timber cutting has historically been permitted and is presently allowed. The Interior Zone contains roughly 354,000 acres of virgin forest as that term has been used in this litigation. The Portal Zone contains approximately 147,000 acres of virgin forest. There are presently seven active timber sales within the Portal Zone of the BWCA. Six of the seven sales are subject to the district court’s permanent injunction. Approximately 5,000 acres of timber remain uncut within the enjoined sales. The remaining uncut timber is virgin timber. The EIS and Management Plan before us were prepared with respect to all aspects of BWCA management. The EIS considers the favorable and adverse impacts of commercial timber cutting as well as the alternatives of such activity. The timber resource is described in the EIS. Six alternative timber cutting policies are considered which range from. permitting logging throughout the BWCA to prohibiting logging throughout the BWCA. The Management Plan, which is designed to provide management direction for ten years, selects the timber policy considered under Alternative 3 in the EIS. That policy includes the following provisions: 1) the continuance of the two zone system of regulating commercial timber harvesting — such harvesting is permitted in the Portal Zone (except with respect to timber within 400 feet of the shorelines) but prohibited in the Interior Zone; 2) the completion of existing timber sale contracts subject to mitigation measures designed to avoid certain adverse environmental effects; 3) the requirement that a complete Environmental Analysis Report (EAR) be prepared with respect to each sale; and 4) the requirement of prompt and appropriate cover restoration. Each existing timber sale is discussed in the EIS. The size of each sale, the amount cut, the amount to be cut, the type of wood available, the geology, climate, soil, water, air, vegetation, wildlife, and scenic and aesthetic qualities are discussed with respect to the existing sales. A map of each sale is included within the EIS showing its location, the areas to be cut and the areas in which cutting is prohibited. Furthermore, the EIS indicates that a complete EAR has been prepared with respect to each existing sale. The EARs contain a discussion of the following: 1) the physical description of each sale; 2) the environmental factors which will be affected by completion of the sale; 3) favorable and adverse environmental effects of the sale; 4) various alternatives which range from terminating to completing the sale; 5) the relationship between short term uses of man’s environment and maintenance of long term productivity; and 6) any irreversible and irretrievable commitment of resources. The Forest Service is currently preparing a Timber Management Plan for the Superi- or National Forest, of which the BWCA is a part. This Plan will be accompanied by an EIS which will provide more detailed information on sale site selection, harvest rates and mitigation measures than is contained in the EIS and Plan before us. We assume it will also contain general information similar to that supplied in the EARs relating to each existing timber sale. I. The Wilderness Act. The first question is whether the Wilderness Act, 16 U.S.C. § 1131 et seq., prohibits logging in the virgin forest areas of the BWCA’s Portal Zone. The district court found that “ * * * logging in virgin forest areas destroys the primitive character of the area logged[,]” 401 F.Supp. at 1332, and held that the Wilderness Act prohibits logging in areas which are contiguous to remaining large blocks of virgin forest. Because of this construction, the district court declared 36 C.F.R. § 293.16, the BWCA regulation promulgated by the Secretary of Agriculture pursuant to the Wilderness Act, invalid to the extent such logging was permitted. We hold that logging in the virgin forest areas of the BWCA’s Portal Zone, excepting the shoreline areas, is not prohibited by the Wilderness Act, and that the Secretary’s regulation is reasonable and valid. Our beginning point is the Wilderness Act itself. The Wilderness Act established the National Wilderness Preservation System whereby Congress assumed the authority to establish wilderness areas in the national forests. The Act evinces a desire of Congress to preserve and protect the natural condition of certain lands, designated “wilderness areas,” for present and future generations of American people. 16 U.S.C. § 1131(a). To this end, Congress provided that there shall be no commercial enterprise, including commercial logging, within any wilderness area designated in the Act. 16 U.S.C. § 1133(c). This prohibition is not absolute however. Section 1133(c) itself provides that its prohibition is “ * * * subject to existing private rights,” and other exceptions in the Act. One of these exceptions relates specifically to the BWCA. 16 U.S.C. § 1133(d)(5) provides the following: Other provisions of this chapter to the contrary notwithstanding, the management of the Boundary Waters Canoe Area, formerly designated as the Superi- or, Little Indian Sioux, and Caribou Roadless Areas, in the Superior National Forest, Minnesota, shall be in accordance with regulations established by the Secretary of Agriculture in accordance with the general purpose of maintaining, without unnecessary restrictions on other uses, including that of timber, the primitive character of the area, particularly in the vicinity of lakes, streams, and portages: Provided, That nothing in this chapter shall preclude the continuance within the area of any already established use of motorboats. Three things are apparent from the face of this statute. First, the language “[ojther provisions of this chapter to the contrary notwithstanding,” indicates that the BWCA is to be accorded special treatment under the Wilderness Act. Second, the duty of managing the BWCA is delegated to the Secretary of Agriculture. Third, the BWCA is to be managed with a view to maintaining its primitive character without unnecessary restrictions on other uses, including timber. It is undisputed that some commercial logging in the BWCA was contemplated by Congress. The language of the statute specifically cites timber as an approved use. Whether Congress considered logging of virgin timber to be a permissible use in the BWCA’s Portal Zone, in view of the duty of the Secretary to maintain the primitiveness of the area, is a question which cannot be answered without reference to the legislative and administrative context in which the special BWCA provision was passed. The administrative history of the BWCA and the legislative history of the Wilderness Act conclusively show that logging was to continue as a permissible use within the BWCA’s Portal Zone under the Act. The history of BWCA management and existing circumstances in 1964 also show that logging in the virgin areas of the Portal Zone, except within the shoreline areas, was not prohibited by the Wilderness Act. It is undisputed that before 1964, commercial logging of virgin timber was a. permissible use within the Portal Zone of the BWCA. Indeed, the evidence shows that, historically, virtually all commercial timber harvesting in the BWCA has occurred in virgin areas. Under the 1948 Forest Service Management Plan for the area, which contained language virtually identical to the special BWCA provision in the Wilderness Act, the BWCA was managed with a view to multiple use — including commercial harvesting of virgin timber. It is significant that in 1964, when the Wilderness Act was signed by President Johnson, twenty active timber sales were in operation in the virgin areas of the BWCA. The special BWCA provision was intended to maintain the status quo with respect to management of the area. Nothing in the Act suggests any distinction between logging virgin as opposed to nonvirgin timber. Thus, commercial harvesting of virgin timber outside the shoreline areas is clearly a permissible use within the Portal Zone of the BWCA today. Plaintiffs place great weight on the word “primitive” which is used in the special BWCA provision. They argue that the primary congressional policy with respect to the BWCA was to maintain the primitive character of the area. By equating primitiveness with wilderness, they argue that the purpose of the special BWCA provision was to preserve the naturalness of the area by eliminating commercial harvesting of virgin timber. Plaintiffs’ argument, we feel, misunderstands the unique niche which the BWCA has occupied in the National Forest Preservation System. The BWCA has never been managed as a pure wilderness area. The Wilderness Act did not change this management policy. The Act preserved the traditional BWCA management policy of multiple use. Between 1948 and 1964, the BWCA was so managed by the Forest Service under a stated policy which was virtually identical to the language inserted into the special BWCA provision. Thus the use of the word “primitive” was not an effort on the part of Congress to finesse lumbering operations out of the BWCA. If a substantive policy change is to be made with respect to virgin timber cutting in the BWCA, that decision must come from Congress or the responsible executive agency, not from the courts. The validity of the BWCA Regulation, now codified at 36 C.F.R. § 293.16, need not detain us long. Whether we construe the Regulation as a legislative or interpretive one, the Secretary’s construction of the Wilderness Act is valid. The Regulation preserves the two zone concept within the BWCA by creating the Interior and Portal Zones. All commercial timber harvesting is prohibited within the Interior Zone. Commercial harvesting of virgin timber outside the shoreline strips is permitted within the Portal Zone. Timber sale plans must incorporate suitable provisions for cover restoration. This construction is consistent with the Wilderness Act and its history and is, therefore, neither arbitrary nor capricious. II. The Adequacy of the Environmental Impact Statement. The next question is whether the agency complied with the procedural and substantive requirements of NEPA. The district court held that the EIS was procedurally inadequate under NEPA in several respects and that the agency’s decision to permit virgin timber harvesting in the BWCA’s Portal Zone was substantively wrong under NEPA. We find that the district court’s analysis was permeated with two basic misconceptions. First, the district court erroneously held that the Wilderness Act does not permit commercial logging in the virgin forest areas of the BWCA. Second, the district court’s review of the EIS was infected with an impermissibly broad view of its power to review the Forest Service’s substantive decision to permit logging as a vegetation management tool in the BWCA’s Portal Zone. We hold that the agency, with certain exceptions relating to future sales discussed infra, complied with both the procedural and substantive requirements of NEPA in drafting the EIS at issue. A. Judicial Review under NEPA. 1. Procedural Review. Section 101 of NEPA, 42 U.S.C. § 4331, requires that the federal government use “all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources” in order to achieve a broad range of environmental goals. Environmental Defense Fund (EDF) v. Corps of Engineers (Corps), 470 F.2d 289, 294 (8th Cir. 1972), cert. denied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 160 (1973). Section 102 of NEPA, 42 U.S.C. § 4332, provides the “action-forcing” procedural provisions which are designed to accomplish the' environmental goals of Congress. Section 102(2)(C) provides that in every recommendation or report on proposals for legislation and other major federal actions significantly affecting the quality of the human environment, federal agencies shall include a “detailed statement” by the responsible official on the following: (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. The agencies are required to carry out this function to “the fullest extent possible.” The “detailed statement” requirement of § 102(2)(C) serves at least three purposes. First, it requires an agency to compile an environmental record from which a court can determine whether the agency has made a good faith effort to consider the values NEPA seeks to protect. EDF v. Froehlke, 473 F.2d 346, 351 (8th Cir. 1972); EDF v. Corps, supra, 470 F.2d at 295; Sierra Club v. Morton, 510 F.2d 813, 820 (5th Cir. 1975); Silva v. Lynn, 482 F.2d 1282, 1284 (1st Cir. 1973); Calvert Cliffs’ Coordinating Committee v. U. S. Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1114 (1971). To accomplish this, the statement must not merely catalog environmental facts, but also explain fully its course of inquiry, analysis and reasoning. EDF v. Froehlke, supra, 473 F.2d at 351. Second, the statement serves as an environmental full disclosure tool by providing information to the public about the environmental costs involved in a particular project. EDF v. Froehlke, id., 473 F.2d at 351; Sierra Club v. Morton, supra, 510 F.2d at 820. To that end, [the statement] “must be written in language that is understandable to nontechnical minds and yet contain enough scientific reasoning to alert specialists to particular problems within the field of their expertise.” (Citation omitted.) It cannot be composed of statements “too vague, too general and too conclusory.” Environmental Defense Fund v. Froehlke, 473 F.2d 346, 348 (8th Cir. 1972). Silva v. Lynn, supra, 482 F.2d at 1285. See also Sierra Club v. Morton, supra, 510 F.2d at 820. Third, the “detailed statement” requirement ensures the integrity of the process by requiring reasoned analysis in response to conflicting data or opinions on environmental issues. Silva v. Lynn, supra, 482 F.2d at 1285. The detailed statement serves to gather in one place a discussion of the relative impact of alternatives so that the reasons for the choice of alternatives are clear. It thus precludes having stubborn problems swept under the rug by responsible agencies. EDF v. Froehlke, supra, 473 F.2d at 350. We have held that the test of compliance with the procedural provisions of § 102(2)(C) is one of good faith objectivity. EDF v. Corps, supra, 470 F.2d at 296. The touchstone of our inquiry is reason. Iowa Citizens for Environmental Quality, Inc. (ICEQ) v. Volpe, 487 F.2d 849, 852 (8th Cir. 1973) . While the detailed statement must of course be more than a pro forma ritual, EDF v. Froehlke, 368 F.Supp. 231, 237 (W.D.Mo.1973), aff’d per curiam sub nom. EDF v. Callaway, 497 F.2d 1340 (8th Cir. 1974) , the discussion of environmental effects and alternative courses of action need not be exhaustive. ICEQ v. Volpe, supra, 487 F.2d at 852. [NEPA] must be construed in the light of reason if it is not to demand what is, fairly speaking, not meaningfully possible, given the obvious, that the resources of energy and research — and time — available to meet the Nation’s needs are not infinite. Natural Resources Defense Council, Inc. (NRDC) v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 836 (1972). See also ICEQ v. Volpe, supra, 487 F.2d at 852. Thus, the EIS need contain only sufficient information to permit a reasoned choice of alternatives. Id.; NRDC v. Morton, supra, 458 F.2d at 837. The purpose of NEPA is not to require an objection free document, but rather to give Congress, the responsible agencies, and the public a useful decision-making tool. Cape Henry Bird Club v. Laird, 359 F.Supp. 404, 412 (W.D.Va.), aff’d per curiam, 484 F.2d 453 (4th Cir. 1973). We emphasize however that a final impact statement must not be so vague, general and conclusory that it cannot form the basis for reasonable evaluation and criticism. EDF v. Froehlke, supra, 473 F.2d at 348. The requirement of an objective, comprehensive and understandable “detailed statement” ensures that the EIS will fulfill its primary function to provide information as to the environmental consequences of a proposed action. 2. Substantive Review. In EDF v. Corps, supra, 470 F.2d at 298, we held that “ * * * courts have an obligation to review substantive agency decisions on the merits[,]” under NEPA. The standard of substantive review under NEPA is an extremely narrow one however. The reviewing court must first determine whether the agency reached its decision after a full, good faith consideration and balancing of environmental factors. EDF v. Corps, id., 470 F.2d at 300; EDF v. Froehlke, supra, 473 F.2d at 353. The court must then determine whether the agency’s actual balance of costs and benefits was arbitrary or clearly gave insufficient weight to environmental values. EDF v. Corps, supra, 470 F.2d at 300; EDF v. Froehlke, supra, 473 F.2d at 346; Calvert Cliffs’ Coordinating Committee v. U. S. Atomic Energy Commission, supra, 449 F.2d at 1115. A court is without power to substitute its judgment for that of the agency. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). As stated recently by the Supreme Court: Neither [NEPA] nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions. The only role for a court is to insure that the agency has taken a “hard look” at environmental consequences; it cannot “interject itself within the area of discretion of the executive as to the choice of the action to be taken.” Kleppe v. Sierra Club,-U.S.-,-, n.21, 96 S.Ct. 2718, 2731, 49 L.Ed.2d 576 (1976) (citations omitted). It is in this respect that the district court has erred as will be discussed infra. It has, without question, substituted its judgment for that of the agency without a sufficient basis or need therefor. B. Procedural Compliance under NEPA. 1. The Determination of Environmental Impacts — The Matrix Approach. NEPA, § 102(2)(C)(i), requires that an EIS describe the impacts of a proposed action. To comply with this requirement in this case, the Forest Service relies on a series of matrices which is the product of a comprehensive study of the area performed by an interdisciplinary group of specialists m soil, hydrology, forestry, landscape architecture, economics and wildlife. The matrices describe conclusions as to the impacts of the following management activities and uses: soils, water level management, minerals, vegetation management, wildfire, wildlife habitat, recreation activities, recreation facilities, land occupancy, historical and archeological uses and travel network and entry points. These activities are evaluated in relation to environmental factors which are classified into the following groups: physical, biological, cultural and economic. The impacts are described by use of a circle on the matrix where the horizontal column of the management activity intersects with the vertical column containing the specific environmental factor. The district court described the matrices as “ * * * no more than a catalog of the Forest Service’s unexplained conclusions as to the impacts of various management activities and uses[,]” 401 F.Supp. at 1309, and concluded that the matrix method does not represent an accessible means for opening up the decision-making process and subjecting it to critical evaluation outside the agency. The court below buttressed its conclusion on the basis of references to allegedly illogical conclusions contained in the matrix relating to vegetative management. We respectfully disagree with both the court’s result and methodology. There is nothing in this record to indicate that the conclusions in the matrices were reached after less than good faith study. Rather, the record shows that the conclusions on the matrices were reached after intensive study by experts in various fields and good faith debate with the Forest Service staff. We discern no intent on the part of the Forest Service to mislead anyone. The EIS itself warns that the matrices are not the final word on environmental impacts because it is impossible to predict the exact effect of a use or activity. The significant environmental effects of logging and other uses and activities are recognized and presented in a form which affords the decision maker an opportunity to weigh them. The matrices digest thousands of pieces of information. Each explains the present management policy with respect to the activities and uses analyzed. Each explains ways in which the activities and uses could be mitigated. To require a narrative paragraph in lieu of each bit of information in this case would produce an unworkably cumbersome document which would be of questionable usefulness to the decision maker. The CEQ Guidelines themselves provide that the “ * * * agencies should make every effort to convey the required information succinctly in a form easily understood, both by members of the public and by public decisionmakers, giving attention to the substance of the information conveyed rather than to the particular form, or length, or detail of the statement.” 40 C.F.R. § 1500.8(b). Furthermore, we agree with the court in Cape Henry Bird Club v. Laird, supra, 359 F.Supp. at 415, that “[mjethods of quantification are without question matters of judgment and opinion,” and as such, belong within the discretion of the Forest Service. The district court’s effort to discredit the matrix approach by “second-guessing” the values assigned to specific environmental impacts was clearly improper. In the absence of a showing of arbitrariness, the values to be assigned such impacts rest within the discretion of the Forest Service, and the experts at its disposal, not the district court. As stated in EDF v. Froehlke, supra, 368 F.Supp. at 240: [NEPA] did not, in our judgment, contemplate or anticipate that courts were to make choices and determine the merits of conflicting views between the two or more schools of scientific thought and to thereafter disapprove any final EIS which may rely upon data which was inconsistent with the court’s finding. See also Kleppe v. Sierra Club, supra, U.S. at-, 96 S.Ct. 2718. In the absence of any showing of arbitrariness or capriciousness, we find that the matrix approach in this case sufficiently describes the environmental impacts. 2. The Adverse Environmental Impacts — The Virgin Forest. The district court held that the EIS is inadequate under NEPA, §§ 102(2)(C)(ii), (iv) and (v), because it allegedly fails to adequately discuss the adverse environmental effects associated with the loss of virgin timber. We disagree. A careful review of the EIS indicates that the effects of logging on virgin forest areas is one of the primary issues considered in the statement. Loss of virgin character is specifically recognized as an unavoidable adverse impact of the specific management alternatives which permit commercial harvesting in virgin timber areas. The EIS also recognizes that some persons consider virgin timber harvesting to be “ * * * an irretrievable commitment leading to irretrievable loss of parts of a natural laboratory where undisturbed natural processes can be studied.” In view of the value associated with the sanctity of virgin forest, no less than three of the EIS’s six alternatives consider a management policy of reserving virgin timber from commercial harvest. In response to public input respecting the value of virgin forest areas, the Forest Service recognized in the EIS that “* * * there is a need to protect much of the remaining ‘virgin’ timber in the BWCA.” The Service assured the respondents that, in all cases where such timber is proposed to be harvested, the decision to permit cutting will be preceded by detailed environmental analyses. It is also significant that of the 501,000 acres of virgin timber which remain in the BWCA, at least 354,000 acres located in the Interior Zone are reserved from cutting by the Management Plan. This figure is further deflated because it does not take into account the shoreline strips which are reserved from cutting in the Portal Zone. This is a strong indication, we feel, of the Forest Service’s high regard for virgin timber. The discussion of the adverse effects associated with not harvesting timber puts the EIS’s discussion of the virgin timber issue in better context. Like most other environmental issues, eliminating timber harvesting has its disadvantages. In the opinion of some experts, a policy of no logging, given the current lack of knowledge respecting fire management, would create overaged and decadent pockets of trees with attendant insect outbreaks and greater fire danger. The absence of logging roads would decrease access to the area in time of emergency. And greater restrictions on the wood supply would adversely affect the local economy. We do not recite the advantages of cutting virgin timber in order to inject our personal predilections into this case. We do so only to show that the values to be considered in regard to timber policy are difficult to define and compare because of their subjective nature, and to illustrate that legitimate reasons were given by the Forest Service for making the decision it did. 3. Alternatives. In the EIS, the Forest Service considers six major alternative management concepts for the BWCA. These broad scope (or first order) alternatives range from the premise that satisfying local economic needs (by timber and services) does not conflict with the water-related primitive experience, to the premise that maximum protection of the natural qualities of the BWCA would provide the most primitive recreation experience. Each first order alternative considers a number of activities and uses of the BWCA, including timber harvesting, and sets forth second order alternatives for managing such activities and uses. As to timber harvesting the second order alternatives range from allowing logging throughout the BWCA (with the exception of the shoreline exceptions) to prohibiting all timber harvesting in the BWCA. Three alternatives (4-6) specifically consider the policy of prohibiting virgin timber harvesting. Alternative 3 — which retains the two zone concept, allows some commercial logging in Portal Zone, and preserves the existing timber sale contracts with some modifications — is recommended as the best policy. The alternatives are evaluated by the Forest Service in relation to six inherent values which summarize the unique qualities of the BWCA. The comparative advantages of the possible alternatives, the unavoidable adverse impacts of the- alternatives, and the relationship between short-term use and long-term productivity for each alternative are separately discussed. The district court rejected this approach because, in the court’s view, the logging alternatives are not “ * * * separately evaluated in the EIS to determine which is the superior policy.” 401 F.Supp. at 1318. The court criticized the comparison of first order alternatives as a “collection of unexplained conclusions.” 401 F.Supp. at 1320. We find the evaluation of first and second order alternatives adequate under NEPA. The final Management Plan and EIS, as we recognized in our prior opinion, 498 F.2d at 1323, n. 29, were prepared with respect to all aspects of BWCA management. The record conclusively establishes that the district court’s major premise, that the activities considered together are unrelated, is clearly erroneous. Timber cutting policies are interrelated to virtually every other management aspect of the BWCA, including, but not limited to, fire protection, control of insects and disease, water quality, soil, scenic qualities, recreation use, portages, wildlife, vegetative cover and roads. The CEQ Guidelines, 40 C.F.R. § 1500.-8(a)(2), require that an EIS include “[t]he relationship of the proposed action to land use plans, policies, and controls for the affected area.” This requirement is peculiarly important in the BWCA because the area is governed under a multiple use forest management policy in order to provide maximum benefits to the greatest number of persons possible. The BWCA is managed for timber, recreational, scientific, historical and other uses; thus, since each activity and use affects other activities and uses, the effects of them must be described together. Furthermore, one of the main purposes of the “detailed statement” requirement is to elicit public input into the decision-making process. The record shows that the “package” approach was attributable in large part to the desire on the part of the Forest Service to quantify the public responses to the proposed EIS in the final document. As stated by Robert Rice, leader of the interdisciplinary team which prepared the EIS: * * * [W]hat we found out was that people want to talk in terms of: Should we or should we not harvest timber? Should we or should we not permit snowmobiles? Should we or should we not restrict outboard motors? Should we or should we not permit the use of herbicides? Should we or should we not do some of the other activities and uses in the BWCA like campgrounds or campsites — things of that nature. In the responses that we received, very few of them talked to alternatives or planning concept alternatives, or what we called them, first order alternatives. What the Planning Team had to do was they had to try to put together alternatives, based on the responses that we received, and it amounted to grouping. Some people wanted a smattering of all different kinds of uses and activities in the BWCA and others wanted very few uses in the BWCA, so what we tried to do was put together all of the things that would reflect some of those responses. Record, Vol. II, at 178-179 (Nov. 5, 1974). The EIS considers four basic approaches to commercial harvesting: 1) harvesting throughout the BWCA; 2) harvesting in only the Portal Zone; 3) harvesting in only nonvirgin areas; and 4) no commercial harvesting within the BWCA. This approach was made in good faith and provides sufficient information for a “reasoned choice of alternatives” by the decision maker. ICEQ v. Volpe, supra, 487 F.2d at 852. The EIS thus meets the requirement under NEPA of gathering in one place a discussion of the relative environmental impact of alternatives. NRDC v. Morton, supra, 458 F.2d at 834. In criticizing the EIS’s approach to alternative comparison, 401 F.Supp. at 1320— 1323, the district court challenged the Forest Service’s methodology in rating the alternatives in relation to furthering the unique qualities of the BWCA. The district court also challenged certain specific values assigned by the Forest Service. We reject this attempt to discredit the scientific conclusions contained in the EIS. The eonclusions are supported by data in the record. When so supported, quantification of data and resolution of the scientific conflicts presented by it are matters for the experts, not the courts. See EDF v. Froehlke, supra, 368 F.Supp. at 240. 4. The Existing Sales. The existing sales are adequately discussed in the EIS. The EIS describes the size, the amount cut, the amount to be cut, the type of timber, the geology, the climate, the soil, the water, the air, the vegetation, the wildlife, and the scenic and aesthetic qualities with respect to the existing sales. A map of each sale is included in the EIS. Matrix 2 sets forth the physical, biological, cultural and economic impacts which continuing and discontinuing the sales would create. 401 F.Supp. at 1338. In its package of alternatives, the EIS considers four different policies with respect to the existing timber sales. The selected alternative continues existing contracts subject to modifications recommended by environmental analysis. Before the EIS was filed, an EAR was prepared with respect to each sale. The EIS refers to the EARs which were on file with the Forest Service during the publication process. The EARs contain a comprehensive description of the areas subject to timber sales. They describe the environmental impacts as well as the favorable and adverse effects of the proposed action. Each contains a statement as to the unavoidable adverse environmental effects. The EARs analyze alternatives which range from completing the proposed sale, to modifying the terms of the sale, to canceling the sale. Each describes the relationship between short term uses and the maintenance of long term values as well as any irreversible and irretrievable commitment of resources which would occur should the proposed action take place. Although each of the EARs recommends completion of the sale, each recommends adjustments to be made in the terms of the sale to mitigate the potential adverse effects of logging. These adjustments include deleting sensitive areas from cutting, prohibiting rockraking in certain areas, prohibiting the harvesting of immature stands, limiting slash burning, requiring irregular cutting to break up large clear cut areas and limiting mechanical site preparation. We are convinced that the EIS and EARs were prepared by the Forest Service with good faith objectivity. They provide enough specific information to permit a reasoned choice of alternatives. They are, therefore, in compliance with the “detailed statement” requirement of NEPA. 5. The Future Sales. Although the EIS and Management Plan adequately describe the environmental impacts and alternatives with respect to the existing sales, the overall plan for logging in the future is incomplete. The Plan and EIS are designed to serve as the Forest Service’s major decision-making tools for ten years. Yet neither contain any criterion, beyond that relating to the existing sales, for determining what sites are to be logged, when the logging will take place, at what rate the logging will take place or what species will be logged. In Kleppe v. Sierra Club, supra, - U.S. at -, 96 S.Ct. 2718, the Supreme Court recently recognized that a comprehensive impact statement may be required where proposed federal actions will have a “cumulative or synergistic” environmental impact upon an area. The need for such a statement depends on the facts of each case. Sierra Club v. Froehlke, supra, 534 F.2d at 1297. The critical question is whether the actions are essentially independent or interdependent and whether each action involves an irretrievable commitment of resources beyond what is actually expended on each project. Id. We adhere to the view implicit in our prior opinion that a comprehensive EIS is required in this case. The EIS before us is adequate in most respects. However, more specific information is needed to apprise the decision makers as to where, when, what species of trees, and at what rate logging will occur in the Portal Zone throughout the life of the Plan. This information is needed to determine not only how many areas will be logged, but which areas will be affected so that fragmentation of the remaining large blocks of virgin forest can be avoided. Furthermore, as scientific, educational and recreational demands increase in the area, this information is necessary to keep the decision makers informed as to the best available multiple use policy for the area. We have been informed by the Forest Service that it is currently preparing a Timber Management Plan for the Superior National Forest on which an EIS will also be filed. The Forest Service says that this document will contain detailed consideration of a number of subjects, including sale site selection, harvest rates and mitigation. We are assured by the Forest Service that no new sales will be approved until the Timber Management Plan and accompanying EIS are filed. Under these circumstances, we think it appropriate to dissolve the permanent injunction only with respect to the existing timber sales. The Forest Service concedes that the BWCA, EIS and Management Plan were not intended to comprehensively analyze the environmental effects of timber management in the BWCA. Nonetheless such analysis is necessary. C. Substantive Compliance Under NEPA. The district court held that the Forest Service’s decision to permit logging in the Portal Zone is arbitrary under NEPA. 401 F.Supp. 1323-1325. Five factors were cited by the district court to support its decision. First, the inadequacy of the EIS makes a good faith balancing of environmental factors impossible. Second, no meaningful distinction exists between the Portal Zone and the Interior Zone. Third, the decision to log is based on the unsound assumption that sufficient virgin forest exists to accommodate the other uses of the BWCA. Fourth, the decision to log assumes that mining can be halted in the BWCA. Fifth, logging in virgin forest areas violates the Wilderness Act. We reject each of these points. We hold that the Forest Service’s decision to permit logging in the Portal Zone is not arbitrary under NEPA. First, as discussed supra, the EIS is procedurally adequate under NEPA with respect to the existing sales. As to future sales, the EIS, although incomplete in certain respects, provides sufficient information to justify a general policy which permits logging in the future. Second, a meaningful distinction does exist between the Portal Zone and Interior Zone. The BWCA has been managed under the two zone concept since 1941. Some 90% of the BWCA’s waterways are in the Interior Zone. Thus, since most of the recreational use of the BWCA occurs on the waterways, the Forest Service could reasonably conclude that the Interior Zone should be managed with a view toward preserving the naturalness of the area with more restrictions than the Portal Zone. Third, the EIS and Management Plan do accord sufficient consideration to virgin forest areas. The two zone management policy excludes most of the virgin forest from commercial harvest. There is no indication that any present or future scientific, recreational or educational demand for virgin forest will not be met because of commercial harvesting in the Portal Zone. Fourth, the district court’s consideration of future mineral activity is speculative. If and when the Forest Service changes its current policy of prohibiting mineral activity, another EIS will be drafted with respect to the environmental factors. Fifth, the Wilderness Act does not prohibit commercial timber harvesting in the virgin areas of the BWCA’s Portal Zone. In summary, the evidence shows that the decision to manage the vegetation in the Portal Zone in part by commercial logging is not arbitrary. All parties acknowledge that the vegetation in the BWCA must be managed in some manner. The art of prescribed burning has not been perfected. Logging is a legitimate vegetative alternative. Timber harvesting is a controllable tool which can safely take the place of fire. III. Remedy. The permanent injunction as it relates to the Wilderness Act is dissolved. The permanent injunction under NEPA is dissolved only as it relates to the existing sales. With respect to future sales, the permanent injunction will remain in force until the Forest Service files its new Timber Management Plan and related EIS for the Superior National Forest, at which time the injunction shall be completely dissolved provided those documents contain specific provisions relating to future timber cutting which in all material aspects are comparable to and compatible with the information supplied concerning the existing timber sales. Reversed. APPENDIX A Commercial harvesting of virgin timber has historically been a permissible use within the Portal Zone of the BWCA. This logging has been sanctioned by both congressional and administrative authority. During most of this century, the BWCA has been managed under a policy of multiple use forest management. This concept implies that renewable surface resources should be administered for a number of uses (including, among others, timber, water, wildlife, recreation and scientific research) in a combination that will best meet the needs of the American people without impairment. The first BWCA multiple use policy resulted from a report prepared by Arthur Carhart, a landscape artist for the Forest Service. In 1922, Carhart recommended that logging be prohibited within a reasonable distance of the BWCA’s lakes and streams in order to protect the scenic value of the region by preserving the effect of a comparatively undisturbed forest. Logging was to be continued with proper restrictions under Carhart’s plan however. This multiple use policy was recognized by the Department of Agriculture as early as 1926. In 1930, the Forest Service promulgated Regulation L-20 which dedicated different classes of areas for different uses. Among the areas designated were “natural areas” in which timber cutting was prohibited and “primitive areas” in which logging was declared to be a compatible use. Experimental Forests and Ranges, Natural and Primitive Areas, Forest Service Regulation L-20 (October 1930). The Superior National Forest was classified as a “primitive area” under Regulation L-20 and commercial timber harvesting was permitted to continue as a compatible use of the area. The Shipstead-Newton-Nolan Act, codified at 16 U.S.C. §§ 577 et seq. was also passed in 1930. This Act gave congressional approval to the Carhart proposal to prohibit logging in the vicinity of lakes and streams. Throughout the 1930’s however, the Forest Service continued to permit commercial timber harvesting in the Superior Primitive Area as it was then called, with the exception of the shoreline areas, in conformance with its theretofore stated policy of multiple use forest management. In 1941, the Superior Roadless Area was divided into two zones. The northern zone or “no-cut zone” was reserved from cutting in order to preserve the aesthetic value of the forest and waters located therein. The southern zone was not reserved from timber harvest and, after World War II, large scale commercial logging resumed in the virgin areas outside the “no-cut zone.” In 1948, Secretary of Agriculture Clinton P. Anderson approved a Plan of Management drafted by the Forest Service which permitted commercial logging to continue outside the “no-cut zone.” The Plan stated its general purpose as follows: The general purpose of the plan of management is, without unnecessary restrictions on other uses including that of timber, to maintain the primitive character of the areas, particularly in the vicinity of lakes, streams and portages, and to prevent as far as possible the further intrusion of roads, aircraft, motor boats and other developments inharmonious with that aim. Management Plan — Superior Roadless Areas (February 13, 1948), at 1. Under the 1948 Plan of Management, commercial harvesting of virgin timber did, in fact, continue outside the “no-cut zone” until the Wilderness Act was passed in 1964. The statement of policy quoted above, under which such logging was permitted to continue, was inserted nearly verbatim into the special BWCA provision, 16 U.S.C. § 1133(d)(5), contained in the Wilderness Act. In 1958, the name of the area was changed from the Superior Roadless Area to the Boundary Waters Canoe Area. In the Multiple Use-Sustained Yield Act of 1960, 16 U.S.C. §§ 528-531, Congress recognized the policy of multiple use and sustained yield with respect to the management of the national forests. Congress declared that “ * * * the national forests * * * shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes.” 16 U.S.C. § 528 (emphasis supplied). The Act specifically authorized and directed the Secretary of Agriculture “ * * * to develop and administer the renewable surface resources of the national forests for multiple use and sustained yield of the several products and services obtained therefrom.” 16 U.S.C. § 529. In the Wilderness Act, Congress declared that nothing therein was to be construed to interfere with the purposes of the Multiple Use-Sustained Yield Act of 1960. 16 U.S.C. § 1133(a)(1). The legislative history of the Wilderness Act is equally clear. The Wilderness Act was initially introduced by Senator Humphrey on February 11, 1957. 103 Cong.Rec. 1892 (1957). Although the bill, S. 1176, did not contain the special BWCA provision, Senator Humphrey stated the following: “This bill will not interfere with, but will perpetuate, the present multi-purpose administration of these national forest areas.” Id. at 1894. Despite Senator Humphrey’s admonition, the initial version of the Wilderness Act created a great deal of controversy in Minnesota with respect to logging in the BWCA. Commercial timber interests feared that the commercial enterprise prohibition of S. 1176, without special BWCA recognition, would preclude commercial logging in the area. The Forest Service and Department of Agriculture were also opposed to the Act in many respects, including its failure to provide special treatment for the BWCA. On June 19, 1957, Dr. Richard E. McArdle, Chief of the Forest Service, submitted a substitute bill in behalf of the Department of Agriculture which included the special BWCA provision. Hearings on S. 1176 Before the Senate Comm, on Interi- or and Insular Affairs, 85th Cong., 1st Sess. 96 — 97 (1957) [hereinafter cited as 1957 Hearings]. The special BWCA provision was necessary, according to McArdle, because the BWCA would not otherwise be manageable as a wilderness area under the Act since timber cutting had been an historical and continuing use of the area. Id. at 100. Senator Humphrey appeared before the Senate Committee on the same day as McArdle. Senator Humphrey emphasized again that the purpose of S. 1176 was to preserve wilderness values by preserving the status quo. In reference to S. 1176, he said: No area now devoted to any economic purpose, or to any other development program, is withdrawn from its use by this legislation. * * * [W]ith regard to each area involved, this proposal is one that respects the importance of other programs. It is a multiple-purpose wilderness program. Every area included in the proposed national wilderness preservation system is now serving some other purpose, or purposes, consistent with the continued protection of the area as wilderness. Under this legislation, these areas will continue to serve those purposes and they will be administered by the same agencies that handle them now. 1957 Hearings 20-21 (emphasis supplied). In response to the Department’s objections, Senator Humphrey introduced S. 4028 on June 18, 1958, which contained the changes urged by the Department of Agriculture, including the special BWCA provision. 104 Cong.Rec. 11552, 11553 (1958). Before the Senate, Senator Humphrey referred to a meeting held in Minnesota at which certain business enterprises voiced criticism- of the bill as originally proposed •without the-special BWCA provision. Senator Humphrey said: When I went to the meeting in Minnesota to which I referred to a moment ago, for example, I took with me the first revision of the bill that had clarified what our Minnesota friends had misunderstood and had met the valid objections they had pointed out to us. Id. at 11551 (1958). The change to which Senator Humphrey referred was, of course, the special BWCA provision permitting timber cutting to continue in the BWCA. Shortly after S. 4028 was introduced, Forest Service Chief McArdle wrote to Senator Humphrey and stated: The provisions of the latest Wilderness Bill, S. 4028, of the 85th Congress, do not, in our opinion, specify any change in the present management policies for the Boundary Waters Canoe Area, hence if a bill similar to S. 4028 were enacted, the Forest [Service] could manage this area in the same manner as it is now being managed. Letter from Richard E. McArdle to Senator Hubert Humphrey, September 4, 1958. Significantly, both sides of the controversy — the business interests in northern Minnesota who lodged the initial protest as well as certain environmental interests — were under the same impression as Forest Chief McArdle. On February 19, 1959, Senator Humphrey introduced S. 1123, another wilderness bill, for Senate consideration. 105 Cong.Rec. 2636 (.1959). S. 1123 contained the special ' BWCA provision. Id., at 2642. In his -re-. marks-, Senator Humphrey again empha-' sized that the measure was a multiple use wilderness program. Id. at 2637 — 2638. With respect to the effect of the bill' on commercial interests, Senator Humphrey stated the following: I feel, Mr. President, that I can indeed assure the Senate that commercial interests will suffer no damage whatever by this program. None of us here in the Senate need fear that after the enactment of this measure the commercial interests, whom we all respect and value, will come to us and complain that they have been hurt. None of them will suffer damage. * * * * 4! * Whatever commercial interests there may legitimately be in these areas of wilderness will thus be carefully safeguarded in this program. Id. at 2637. The next version of the Wilderness Act, S. 174, was introduced on January 5, 1961, and also contained the special BWCA provision. 107 Cong.Rec. 189-193 (1961). The Senate Committee on Interior and Insular Affairs favorably recommended passage of S. 174. S.Rep.No.635, 87th Cong., 1st Sess. 1 (1961). During the House hearings on the measure, in May 1962, then Secretary of Agriculture Freeman testified that the management of the BWCA would not be changed by the Wilderness Act. Hearings on S. 174 Before the Subcomm. on Public Lands of the House Comm, on Interior and Insular Affairs, 87th Cong., 2d Sess. 1217 (1962). The Wilderness Act became law in 1964. The final version, numbered S. 4, was identical to S. 174 except for a change in the designation of “forest superintendent” to “forest supervisor.” S.Rep.No.109, 88th Cong., 1st Sess. 1 (1963). S. 4, of course, contained the special BWCA provision which was enacted into law. During the course of the Senate Hearings on S. 4, Edward P. Cliff, Chief of the Forest Service, appeared on behalf of the Agriculture Department to express the Department’s strong support of the bill. Like his predecessors, Cliff expressed the view that the status quo would be maintained in the BWCA, and timber harvesting would continue in the area under the Act. Hearings on S. 4 Before the Senate Comm, on Interi- or and Insujar Affairs, 88th Cong., 1st Sess. 35 (1963). The Senate Committee again recommended passage of the bill. In its report, the Committee specifically noted that no timber lands would be withdrawn from lumbering operations. > * * * [T]he Wilderness Preservation System can be established without affecting the economic arrangements of communities, counties, States or business enterprises since the areas are already withdrawn, or because existing private rights ¿fí and established uses are permitted to ¿ tinue. There will be no withdrawal of lands from the tax base of counties or communities; no withdrawal of timber-lands on which lumbering operations depend * * *. S.Rep.No.109, 88th Cong., 1st Sess. 2 (1963) (emphasis supplied). . The action of the Forest Service, which we held in our prior opinion to be major federal action requiring an environmental impact statement, relates to the administration of timber sales within the BWCA. This action may be divided into three basic categories: contract extensions, contract modifications and other administrative actions required by the contracts. . The government defendants in this action are Secretary of Agriculture Earl Butz, and John McGuire, Jay Cravens and James Torrence of the United States Forest Service. The private defendants are the following: Consolidated Papers, Inc., Potlatch Corporation, Northern Wood Preservers, Ltd., Kainz Logging Company, Emil Abramson and Boise Cascade Corporation. . See MPIRG v. Butz, 358 F.Supp. 584 (D.Minn. 1973); MPIRG v. Butz, 498 F.2d 1314 (8th Cir. 1974); MPIRG v. Butz, 401 F.Supp. 1276 (D.Minn. 1975). . The figure contained in the EIS at 1 is 1,030,-000. . 36 C.F.R. § 293.16 (1975). . Virgin forest has been defined throughout this litigation as land area which has never been affected by the forces of man. . These sales are the Shell Lake Sale, Sunny-dale Sale, Jerry Creek Sale, West Tofte Sale, East Toft Sale, Beartrap Sale and Old Road Sale. Appendix C of the EIS and Management Plan contains a description and map of each of the sales. A description of each sale is found in the district court’s opinion. 401 F.Supp. at 1286-87. . The Old Road Sale is not subject to the injunction because it does not amount to an incursion into the main virgin forest area of the BWCA. 401 F.Supp. at 1287. . The format of the EIS and Plan is more thoroughly described in the district court’s opinion. 401 F.Supp. at 1292-1294. . These reports were on file with the Forest Service for public dissemination during the EIS publication process. . For a description of the administrative history of the BWCA and the legislative history of the Wilderness Act, see Appendix A appended to and by reference made a part of this opinion. . Three of the active timber sales at issue in this case were made before the Wilderness Act was passed. These are the West Tofte Sale, East Toft Sale and Jerry Creek Sale. . It is true, as plaintiffs argue, that when the Wilderness Act was passed, “primitive” areas were administered in the same manner as “wilderness” areas in which commercial logging was prohibited. See Hearings on S. 174 Before the Subcomm. on Public Lands of the House Comm, on Interior and Insular Affairs, 87th Cong., 2d Sess. 1211 (1962). At that time, however, commercial logging was permitted in the BWCA because the area was not classified as a “primitive” area under Regulation L-20, but was classified as a “recreation” area under Regulation U-3. . Plaintiffs spend many pages in their briefs arguing that the Secretary’s Regulation is invalid under the Act to the extent that it permits logging in the BWCA for the purpose of producing a particular type of vegetation. Plaintiffs challenge the Selke Committee Report, on which Secretary Freeman allegedly relied, which recommended continued logging in the BWCA’s Portal Zone for this purpose. They argue that only an economic purpose can be used to justify continued logging. We decline the invitation to interfere with the management function of the Secretary of Agriculture. We have found that logging of virgin timber is a permissible use of the BWCA’s Portal Zone under the Wilderness Act. The Secretary’s construction of the special BWCA provision is not arbitrary or capricious. How the Secretary chooses to justify the permissive use of logging, absent arbitrariness, is not a matter within the power of this court. . NEPA established the Council on Environmental Quality (CEQ), 42 U.S.C. § 4342. Congress directed the CEQ to perform a wide range of environmental duties and functions including reviewing and appraising various programs and activities of the federal government in light of the environmental policies stated in NEPA. 42 U.S.C. § 4344. CEQ has formulated guidelines, codified at 40 C.F.R. § 1500.8, to assist federal agencies in the preparation of environmental impact statements. This circuit has accorded these guidelines substantial weight in reviewing compliance with NEPA. Sierra Club v. Froehlke, 534 F.2d 1289, 1294 n.17 (8th Cir. 1976). . The district court held, as an initial matter, that the Forest Service failed to adequately describe the ultimate goal of its vegetation management policy in its EIS and Management Plan. 401 F.Supp. at 1299-1304. We disagree. The EIS presents six alternative timber management policies which range from maximizing benefits to the local economy (Alternative 1) to maximizing primitive values (Alternative 6). 401 F.Supp. 1339-1344. Each alternative considers policies relating to: 1) allowable commercial timber harvesting; 2) existing timber sales; 3) administrative cutting; 4) mechanical treatment; 5) prescribed burning; and 6) herbicides. These policies, when read in conjunction with the matrix analysis discussed hereinafter, permit adequate assessment of the environmental impacts flowing from the various proposed actions. The district court was primarily concerned with the vegetation management policy contained in the Management Plan. Its focus was misplaced, because the major concern under NEPA is the adequacy of the timber policies considered in the EIS, not the substantive merits of the timber policy which the Forest Service chose to follow in its Management Plan. Furthermore, the district court’s criticism of the vegetation policy in the Management Plan is based on the erroneous premise that the Forest Service’s sole policy is to preserve the naturalness of the area. The policy of the Plan, like the policy expressed under Alternative 3 in the EIS, is one of multiple use. The seemingly inconsistent policies (e. g., preserving the naturalness of the area and yet permitting some commercial timber harvesting) stated in the EIS and Plan are permitted by Congress and are the result of compromises inherent in multiple use management. They are not the result of an effort on the part of the Forest Service to finesse a timber cutting policy into the Management Plan by deceiving the public. . The matrix analysis used in this case is more thoroughly described in the district court’s opinion. 401 F.Supp. at 1309. The matrix which describes the impacts of timber cutting on the BWCA is reproduced at 401 F.Supp. 1338. . . The matrix approach has been approved in another context. See Sierra Club v. Morton, 510 F.2d 813, 822 (5th Cir. 1975). . The alternatives as they relate to timber harvesting are summarized at 401 F.Supp. at 1318. . The six values are: 1) natural beauty of the shorelines, 2) water travel network, 3) vegetation, 4) wildlife, 5) recreation experience, and 6) research. . The comparative evaluátion reads as follows: Comparison Evaluation of Alternatives on the Inherent Values of the BWCA Alternatives Values ¿ 2 3 4 5 6 Natural Beauty of the Shorelines 3 3 3 2 2 2 Water Travel Network 2 2 3 2 2 2 Vegetation 3 2 2 2 1 1 Wildlife 3 2 2 2 1 1 Alternatives Values 1 2 3 4 5 6 Recreation Experience 2 3 3 3 3 2 Research Opportunity 1 2 2 2 3 2 Total 14 14 15 13 12 11 Key: 3 = best response to values 2 = average response to values 1 = least response to values EIS at 113. . The district court held that the EIS failed to consider the impact of future mining in the area and that “[t]he Forest Service should have considered the alternative of postponing the logging [in the] virgin forest areas in the BWCA until the status of private mineral rights is finally determined.” 401 F.Supp. at 1317. We cannot say that the failure to discuss this impact and alternative was arbitrary. Because of practical considerations of feasibility, only reasonable alternatives must be considered under NEPA, §§ 102(2)(C)(iii) and 102(2)(D). ICEQ v. Volpe, 487 F.2d 849, 853 (8th Cir. 1973). The Management Plan currently prohibits mining. Thus, the prospect of future mining operations in the BWCA is hypothetical, if not speculative. Furthermore, even if mining operations are proposed in the future, an independent EIS discussing the impacts ón the environment will be required since such operations would be “major Federal actions having a significant effect on the human environment].]” Cady v. Morton, 527 F.2d 786, 796 (9th Cir. 1975). If and when mining becomes an environmental threat to the virgin forest, the impacts and alternatives of such activity can then be discussed. The district court also held that the EIS was defective under NEPA, §§ 102(2)(C)(iii) and 102(2)(D) because it failed “ * * * to consider the alternative of suspending commercial timber harvesting in virgin forest areas pending the development of a viable fire management program.” 401 F.Supp. at 1302. Again, we cannot agree. The district court’s analysis of this problem is permeated by its belief that the Forest Service is wrong in allowing logging, instead of fire and neglect, to be used as the primary tool to manage the vegetation in the Portal Zone. 401 F.Supp. at 1301. NEPA does not direct a court to substitute its judgment for that of the agency. Kleppe v. Sierra Club,U.S.-,-, n. 21, 96 S.Ct. 2718, 49 L.Ed.2d - (1976). The Forest Service’s decision to use logging as a vegetative management tool is supportable. Forest fires endanger human life and wildlife and, as the district court concedes, the alternative of prescribed burning “ * * * needs extensive research and development.” 401 F.Supp. at 1302. Furthermore, the fire issue is thoroughly considered in the EIS. Matrix 2 describes the effect of 1) manipulating the vegetation by prescribed burning and 2) manipulating the vegetation by allowing selected wildfires to burn. The matrix describes these policies in relation to some 20 environmental factors grouped into the following categories: physical, biological, cultural and economic. Matrix 2 specifically describes both policies as “compatible” with the natural laboratory, which the EIS tells us reflects the impacts on virgin areas. A separate matrix describes six alternatives of managing wildfires (ranging from controlling no wildfires to suppressing all wildfires). From this matrix, fire policies are injected into each of the six alternative concepts of BWCA management. . The four alternatives are: 1) continue the existing contracts in their original form; 2) continue existing contracts with modifications in accordance with the findings of environmental analyses; 3) modify existing contracts to exclude major blocks of virgin forest and to conform to environmental analyses; and 4) cancel existing sale contracts. 401 F.Supp. at 1339-1344. . Areas of high erosion and shallow soils are among those which are recommended for deletion. . Our disposition with respect to future sales, discussed infra, does not require a different result. Approximately 5,000 acres of timber remain uncut within the existing sales. This area is approximately one-half of one percent of the total area within the BWCA. At least 501,000 acres of virgin timber, or nearly 50% of the total area within the BWCA, will remain after completion of the existing sales. Thus the existing sales represent only a negligible incursion into the virgin forest areas of the BWCA. . If the specific provisions of the Timber Management Plan and EIS are in all material respects comparable to and compatible with the information already provided concerning the existing timber sales, the district court shall then promptly dissolve the injunction in its entirety. . A typical statement of the Forest Service’s policy is contained in the 1932 Superior National Forest Primitive Area Report, Plaintiffs’ Exhibit 156 at 7: Cutting operations under selective logging and 100 per cent coniferous brush disposal are not inimical to the preservation of the natural beauty of the Primitive Area and will be permitted on government land in strict conformity with the stipulations of the Ship-stead, Newton, Nolan Bill which provides specifically for the safeguarding of our lake shores against ruthless logging. . In 1938, the name of the area was changed from the Superior Primitive Area to the Superi- or Roadless Area. . The Plan discussed the conflicting demands upon the area and the desirability of multiple use forest management. The Forest Service said: Another economic element of the situation is that of the timber resource. Many visitors no doubt would like to see all timber on the roadless areas preserved from cutting. It is a natural feeling, especially if their observations happen to include logging, which at best leaves temporary scars on the landscape. On the other hand, the timber stands of merchantable size in the roadless areas represent nearly a third of the present stand on the Superior National Forest and five percent or more of the total stand in the State of Minnesota. Only a portion of this needs to be withdrawn from the channels of manufacture and trade to protect effectively the recreational values. Management Plan — Superior Roadless Areas (February 13, 1948), at 10. . William Esseling, Chairman of the Ely, Minnesota, Citizens Committee, testified before the Senate Committee on Interior and Insular Affairs that the objections óf the business groups had been met as to mining, lumbering,' and prospecting. Hearings on S. 4028 Before the Senate Comm, on Interior and Insular Affairs, '85th Congj 2d Sess., 77 [hereinafter cited as 1958 Hearings ]. In a statement submitted to the' Committee, Friends of Wilderness stated the following: In the Superior National Forest, which' after all is not a major subject of the national bill but only a small detail among many, not one inch of the Toadless area boundaries are changed nor any of the existing provisions altered. The bill changes nothing whatsoever in the Superior National Forest. 1958 Hearings 159 (emphasis supplied).